.TRIAL 


OF   THE 


OFFICERS  AND  CREW  OF  THE  PRIVATEER 
SAVANNAH, 


ON  THE  CHARGE  OF  PIRACY, 


IN    THE 


UNITED  STATES  CIRCUIT  COURT  FOR  THE  SOUTHERN 
DISTRICT  OF  NEW  YORK. 


HON.  JUDGES  NELSON  AND  SHIMAN,  PRESIDING. 


REPORTED  BY  A.  F.  WARBURTON,  STENOGRAPHER, 

AND  CORRECTED  BY  THE  COUNSEL. 


NEW  YORK : 

BAKER  &  GODWIN,  PRINTERS, 

PRINTING-HODSE    SQUARE,  OPPOSITE  CITY  HALL. 
1862. 


CONTENTS. 


Page 

PRELIMINARY  PROCEEDINGS  : 

Capture  of  the  Savannah  ;  the  removal  of  the  prisoners  to  New 

York,  and  their  committal  for  trial,    .  .             .                    v 

The  Indictment,                                       .  vi 

The  Arraignment,  .    xiii 

TRIAL  OF  THE  PRISONERS.     FIRST  DAY  : 

Organization  of  the  Court,      .  1 

Impaneling  of  the  Jury,    .             .             .  .             .             .2 

Opening  of  Mr.  E.  Delafield  Smith,  United  States  District  Attor 
ney,               ....  14 

Testimony  for  the  Prosecution  : 

Albert  G.  Ferris,         .  20 

William  Habeson,  .             .                          41 

George  Thomas,         .  41 

George  II.  Cables,             .  41 

Thies  N.  Meyer,         .  .       42 

Horace  W.  Bridges,  46 

Silas  H.  Stringham,    .  .       48 
Argument  on  the  Jurisdiction  : 

Mr.  Larocque,       .  .             49 

Mr.  Brady,     .  50 

Mr.  Evarts,  50 

Mr.  Larocque,    .  .51 

TRIAL.     SECOND  DAY  : 

Decision  on  the  Jurisdiction,  .             .  54 

Testimony  for  the  Prosecution,  resumed  : 

Silas  H.  Stringham,    ....  .55 

David  C.  Constable,          .  60 

Daniel  D.  Tompkins,  .       62 

J.  Buchanan  Henry,                      .  63 

Ethan  Allen,                           .            .  .             .             .64 

Mr.  Larocque's  Opening  for  the  Defence,  .                                      66 

Documentary  Testimony,               .  .             .             .108 

TRIAL.     THIRD  DAY  : 

Documentary  Testimony,        .             .  •.             .           110 
Testimony  for  the  Defence  : 

Daniel  D.  Tompkins,             .            .  .             .            .112 

Presentation  of  Authorities  by  Counsel  for  the  Prosecution,  113 


IV  CONTENTS. 

Page 
Arguments  of  Counsel  on  the  Points  of  Law  : 

Mr.  Lord,       .  .117 

Mr.  Larocquc,       ....  133 

TRIAL.     FOURTH  DAY  : 

Arguments  of  Counsel  on  the  Points  of  Law  :* 

Mr.  Larocque,  continued,      .  .144 

Mr.  Mayer,  10-1 

Mr.  Brady,     .  1  <>«) 

Mr.  Evarts,  170 

TRIAL.     FIFTH  DAY  : 

Summings  up  of  Counsel  to  the  Jury  : 

Mr.  Dukes,     .  204 

Mr.  Sullivan,         .  218 

Mr.  Davega,    ...  .231 

Mr.  Brady,  236 

TRIAL.     SIXTH  DAY: 

Summings  up  of  Counsel  to  the  Jury  : 

Mr.  Brady,  continued,  .     270 

Mr.  Evarts,  .  283 

TRIAL.     SEVENTH  DAY  : 

Summings  up  of  Counsel  to  the  Jury  : 

Mr.  Evarts,  continued,           .             .  334 

Charge  to  the  Jury,  by  Judge  Nelson,  .            .           368 

Return  of  the  Jury  and  further  instructions,  .                         .     373 

TRIAL.     EIGHTH  DAY  : 

Discharge  of  the  Jury,     .  .  375 

APPENDIX  : 

President's  Proclamation,  April  15,  1861,       .  377 

Proclamation  of  the  President,  declaring  a  Blockade,       .  .  378 

Correspondence  between  Gov.  Pickens  and  Major  Anderson,  379 

Extracts  from  President  Lincoln's  Inaugural,       .  380 

The  President's  Speech  to  the  Virginia  Commissioners,  381 
Extracts  from  President  Lincoln's  Message  to  Congress,  July  4, 

1861,  382 

Extracts  from  President  Buchanan's  Message  to  Congress,  De 
cember  4,  1860,    ...  383 
Proclamation  of  August  16,  1861,            .            .  384 


PRELIMINARY  PROCEEDINGS. 


During  the  month  of  May,  1861,  the  schooner  Savannah, 
of  Charleston,  of  about  fifty-three  tons  burden,  and  mounting 
one  pivot  gun,  was  fitted  out  as  a  privateer,  in  the  City  of 
Charleston  ;  and  on  the  second  of  June^  under  the  authority  of 
"  a  paper,  purporting  to  be  a  letter  of  marque,  signed  by  Jef 
ferson  Davis,"  she  sailed  from  that  port  for  the  purpose  of 
making  captures  among  the  commercial  marine  of  the  United 
States. 

On  the  following  day  (Monday,  June  3),  after  having  cap 
tured  the  brig  Joseph,  laden  with  sugar,  she  was,  in  turn,  her 
self  taken  by  the  United  States  brig-of-war  Perry,  Captain 
Parrott,  and  carried  to  the  blockading  squadron,  off  Charles 
ton,  to  the  commander  of  which  (Commodore  Stringham)  she 
was  surrendered  by  her  captors. 

On  the  fifth  of  June  the  officers  and  crew  of  the  Savannah 
were  transferred  from  the  Perry  to  the  United  States  steam - 
frigate  Minnesota,  while  the  prize  was  taken  in  charge  by  a 
prize  crew  from  the  Perry  and  sent  to  New  York. 

The  Minnesota,  with  the  prisoners  on  board,  proceeded,  on 
her  way  to  New  York,  to  Hampton  Roads,  where  the  prisoners 
were  transferred  to  the  steam-cutter  Harriet  Lane  ;  and  thence, 
on  board  that  vessel,  they  were  conveyed  to  New  York,  at 
which  port  they  arrived  in  the  course  of  the  month  of  June. 

On  the  arrival  of  the  Harriet  Lane  at  New  York,  the 
prisoners  were  given  in  charge  to  the  United  States  Marshal  ; 
and,  on  application  of  the  District  Attorney  of  the  United 
States,  a  warrant  was  issued,  under  which  the  prisoners  were 
committed  for  trial. 

On  the  16th  of  July  following,  the  Grand  Jury  of  the 
Federal  Court,  then  sitting  in  this  city,  came  into  court  and 
presented  a  true  bill  against  the  prisoners,  a  copy  of  which  In 
dictment  is  as  follows  : — 


VI  PRELIMINARY  PROCEEDINGS. 


CIRCUIT  COURT  OF  THE  UNITED  STATES  OF  AMERICA  FOR 
THE  SOUTHERN  DISTRICT  OF  NEW  YORK,  IN  THE  SECOND 
CIRCUIT.* 

At  a  stated  Term  of  the  Circuit  Court  of  the  United  States  Of  America 
for  the  Southern  District  of  New  York,  in  the  Second  Circuit,  begun  and 
held  at  the  City  of  New  York,  within  and  for  the  District  and  Circuit  afore 
said,  on  the  first  Monday  of  April,  in  the  year  of  our  Lord  1861,  and  contin 
ued  by  adjournments  to  the  2Gth  day  of  June  in  the  year  last  aforesaid  : 

Southern  District  of  New  York,  ss. :— The  Jurors  of  the  United  States  of 
America,  within  and  for  the  District  and  Circuit  aforesaid,  on  their  oath, 
present  : 

That  Thomas  Harrison  Baker,  late  of  the  City  and  County  of  New  York, 
in  the  District  and  Circuit  aforesaid,  mariner ;  and  John  Harleston,  late  of  the 
same  place,  mariner ;  Charles  Sidney  Passalaigue,  late  of  the  same  place, 
mariner  ;  Henry  Cashman  Howard,  late  of  the  same  place,  mariner ;  Joseph 
Cruz  del  Carno,  late  of  the  same  place,  mariner ;  Henry  Oman,  late  of  the 
same  place,  mariner ;  Patrick  Daly,  late  of  the  same  place,  mariner ;  William 
Charles  Clark,  late  of  the  same  place,  mariner ;  Albert  Gallatin  Ferris,  late 
of  the  same  place,  mariner ;  Richard  Palmer,  late  of  the  same  place,  mariner ; 
John  Murphy,  late  of  the  same  place,  mariner ;  Alexander  Carter  Coid,  late 
of  the  same  place,  mariner ;  and  Martin  Galvin,  late  of  the  same  place,  mari 
ner,  on  the  3d  day  of  June,  A.  D.  1801,  upon  the  high  seas,  out  of  the  juris 
diction  of  any  particular  State,  and  within  the  admiralty  and  maritime  juris 
diction  of  the  said  United  States  of  America,  and  within  the  jurisdiction  of 
this  Court,  did,  with  force  and  arms,  piratically,  feloniously,  and  violently  set 
upon,  board,  break,  and  enter  a  certain  vessel,  to  wit,  a  brig  called  the  Joseph, 
the  same  being  then  and  there  owned  in  whole  or  in  part,  by  a  citizen  or  citi 
zens  of  the  United  States  of  America,  whose  name  or  names  are  to  the  Jurors 
aforesaid  unknown,  and  did  then  and  there  in  and  on  board  of  the  said  brig, 
the  Joseph,  in  and  upon  one  Thies  N.  Meyer,  then  and  there  being  a  mariner, 
and  then  and  there  one  of  the  ship's  company  of  the  said  brig,  the  Joseph, 
and  then  and  there  master  and  commander  thereof,  and  in  and  upon  Horace 
W.  Bridges,  Albert  Nash,  William  II.  Claiming,  John  J.  Merritt,  John  Quin, 
and  Joseph  H.  Golden,  each  then  and  there  being  a  manner  and  one  of  the 
ship's  company  of  the  said  brig,  the  Joseph,  piratically,  feloniously,  and  vio 
lently  make  an  assault,  and  them  did  then  and  there  piratically,  feloniously, 
and  violently,  put  in  personal  fear  and  danger  of  their  lives,  and  did  then 
and  there,  the  brig,  the  said  Joseph,  of  the  value  of  $3,000,  and  the  tackle, 
apparel,  and  furniture  thereof,  of  the  value  of  $500,  and  250  hogsheads  of 
sugar,  of  the  value  of  $100  each  hogshead,  of  the  goods,  chattels,  and  per 
sonal  property  of  certain  persons  whose  names  are  to  the  jurors  aforesaid 
unknown,  the  said  250  hogsheads  of  sugar  being  then  and  there  in  and  on 
board  of  the  said  brig,  and  being  then  and  there  the  lading  thereof,  and  the 
said  brig,  the  tackle,  apparel,  and  furniture  thereof,  and  the  said  250  hogs 
heads  of  sugar,  being  then  and  there  in  the  care,  custody,  and  possession 
of  the  said  Thies  N.  Meyer,  Horace  W.  Bridges,  Albert  Nash,  William  H. 
Clanning,  John  J.  Merritt,  John  Quin,  and  Joseph  H.  Golden,  from  the  said 
Thies  N.  Meyer,  Horace  W.  Bridges,  Albert  Nash,  William  II.  Clanning, 
John  J.  Merritt,  John  Quin,  and  Joseph  II.  Golden,  and  from  their  said  pos 
session,  care,  and  custody,  and  in  their  presence  and  against  their  will,  vio 
lently,  piratically,  and  feloniously  seize,  rob,  steal,  take,  and  carry  away 
against  the  form  of  the  statute  of  the  said  United  States  of  America  in  such 

*  At  the  request  of  the  United  States  District  Attorney,  the  publishers  state  that  the  Indict 
ment  was  mainly  the  work  of  Mr.  JOHN  SKDGWICK,  of  the  New  York  bar. 


PRELIMINARY   PROCEEDINGS.  Vll 

case  made  and  provided,  and  against  the  peace  of  the  said  United  States  and 
their  dignity. 

Second  Count:  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present :  That  Thomas  Harrison  Baker,  late  of  the  City  and  County 
of  New  York,  in  the  District  and  Circuit  aforesaid,  mariner ;  and  John  Har- 
leston,  late  of  the  same  place,  mariner ;  Charles  Sidney  Passalaigue,  late  of 
the  same  place,  mariner ;  Henry  Cashman  Howard,  late  of  the  same  place, 
mariner ;  Joseph  Cruz  del  Carno,  late  of  the  same  place,  mariner ;  Henry 
Oman,  late  of  the  same  place,  mariner  ;  Patrick  Daly,  late  of  the  same  place, 
mariner ;  William  Charles  Clark,  late  of  the  same  place,  mariner ;  Albert 
Gallatin  Ferris,  late  of  the  same  place,  mariner ;  Richard  Palmer,  late  of  the 
same  place,  mariner  ;  John  Murphy,  late  of  the  same  place,  mariner  ;  Alex 
ander  Carter  Coid,  late  of  the  same  place,  mariner  ;  and  Martin  Galvin,  late 
of  the  same  place,  mariner,  on  the  third  day  of  June,  in  the  year  of  our 
Lord  1861,  upon  the  high  seas,  out  of  the  jurisdiction  of  any  particular 
State,  and  within  the  admiralty  and  maritime  jurisdiction  of  the  said  United 
States  of  America,  and  within  the  jurisdiction  of  this  Court,  did,  with  force 
and  arms,  piratically,  feloniously,  and  violently  set  upon,  board,  break,  and 
enter  a  certain  American  vessel,  to  wit,  a  brig  called  the  Joseph,  the  same 
then  and  there  being  owned,  in  part,  by  George  H.  Cables,  John  Cables,  and 
Stephen  Hatch,  then  citizens  of  the  United  State  of  America,  and  did  then 
and  there,  in  and  on  board  of  the  said  brig,  the  Joseph,  in  and  upon  one 
Thies  N.  Meyer,  then  and  there  being  a  mariner  and  one  of  the  ship's  com 
pany  of  the  said  brig,  the  Joseph,  and  master  and  commander  thereof,  and 
in  and  upon  divers  other  persons,  each  then  and  there  being  a  mariner  and 
one  of  the  ship's  company  of  the  said  brig,  the  Joseph,  whose  names  are  to 
the  jurors  aforesaid  unknown,  piratically,  feloniously,  and  violently  make  an 
assault,  and  them  did  then  and  there  piratically,  feloniously,  and  violently 
put  in  bodily  fear  and  danger  of  their  lives,  and  did  then  and  there,  the  said 
brig,  the  said  Joseph,  of  the  value  of  three  thousand  dollars,  and  the  tackle, 
apparel,  and  furniture  of  the  same,  of  the  value  of  five  hundred  dollars,  of  the 
goods,  chattels,  and  personal  property  of  George  H.  Cables,  John  Cables,  and 
Stephen  Hatch,  citizens  of  the  United  States  of  America,  and  two  hundred 
and  fifty  hogsheads  of  sugar,  of  the  value  of  one  hundred  dollars  each  hogshead, 
of  the  goods,  chattels,  and  personal  property  of  one  Morales,  whose  Christian 
name  is  to  the  jurors  aforesaid  unknown,  the  said  sugar  being  then  and  there 
in  and  on  board  of  the  said  brig,  the  Joseph,  and  being  then  and  there  the 
lading  thereof,  and  the  said  brig  and  the  tackle,  apparel,  and  furniture  there 
of,  and  the  said  two  hundred  and  fifty  hogsheads  of  sugar  then  and  there 
being  in  the  care,  custody,  and  possession  of  the  said  Thies  N.  Meyer,  and 
the  said  divers  other  persons,  mariners,  as  aforesaid,  and  of  the  ship's  com 
pany  of  the  said  brig,  the  Joseph,  and  whose  names  are  to  the  jurors  afore 
said  unknown,  from  the  said  Thies  N.  Meyer  and  the  said  divers  other  per 
sons,  mariners,  aforesaid,  and  of  the  ship's  company  of  the  said  brig,  the 
Joseph,  whose  names  are,  as  aforesaid,  to  the  jurors  aforesaid,  unknown^and 
from  their  care,  custody,  and  possession,  and  in  their  presence  and  against 
their  will,  piratically,  feloniously,  and  violently,  rob,  seize,  steal,  take  and 
carry  away,  against  the  form  of  the  statute  of  the  said  United  States  of 
America  in  such  case  made  and  provided,  and  against  the  peace  of  the  said 
United  States  and  their  dignity. 

Third  Count:  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  fur 
ther  present :  That  Thomas  Harrison  Baker,  late  of  the  City  and  County  of 
New  York,  in  the  District  and  Circuit  aforesaid,  mariner ;  and  John  Harle- 
ston,  late  of  the  same  place,  mariner ;  Charles  Sidney  Passalaigue,  late  of 
the  same  place,  mariner ;  Henry  Cashman  Howard,  late  of  the  same  place, 
mariner;  Joseph  Cruz  del  Carno,  late  of  the  same  place,  mariner;  Henry 
Oman,  late  of  the  same  place,  mariner ;  Patrick  Daly,  late  of  the  same  place, 


Vlll  PRELIMINARY   PROCEEDINGS. 

mariner ;  William  Charles  Clark,  late  of  the  same  place,  mariner ;  Albert 
Gallatin  Ferris,  late  of  the  same  place,  mariner ;  Richard  Palmer,  late  of  the 
same  place,  mariner;  John  Murphy,  late  of  the  same  place,  mariner;  Alex 
ander  Carter  Coid,  late  of  the  same  place,  mariner ;  and  Martin  Galvin,  late 
of  the  same  place,  mariner,  on  the  3d  day  of  June,  A.  D.  1801,  upon  the  high 
seas,  out  of  the  jurisdiction  of  any  particular  State,  and  within  the  admiralty 
and  maritime  jurisdiction  of  the  said  United  States  of  America,  and  within 
the  jurisdiction  of  this  Court,  did,  with  force  and  arms,  piratically,  feloniously, 
and  violently  set  upon,  board,  break,  and  enter  a  certain  vessel,  to  wit :  a 
brig  called  the  Joseph,  then  and  there  being  owned  by  certain  persons,  citi 
zens  of  the  United  States  of  America,  to  wit :  George  II.  Cables,  John  Cables, 
and  Stephen  Hatch,  of  Rockland,  in  the  State  of  Maine,  and  in  and  upon  cer 
tain  divers  persons  whose  names  are  to  the  jurors  aforesaid  unknown,  the 
said  last-mentioned  persons  each  being  then  and  there  a  mariner,  and  of  the 
ship's  company  of  the  said  brig  called  the  Joseph,  and  then  and  there  being 
in  and  on  board  of  the  said  brig  the  Joseph,  did  then  and  there,  piratically, 
feloniously,  and  violently  make  an  assault,  and  them  did  then  and  there 
piratically,  feloniously,  and  violently  put  in  bodily  fear,  and  the  said  brig,  the 
Joseph,  of  the  value  of  $3,000  ;  the  apparel,  tackle,  and  furniture  thereof,  of 
the  value  of  $500 ;  of  the  goods,  chattels,  and  personal  property  of  the  said 
George  H.  Cables,  John  Cables,  and  Stephen  Hatch,  and  250  hogsheads  of 
sugar  of  the  value  of  $100  each  hogshead,  of  the  goods,  chattels,  and  personal 
property  of  one  Thies  N.  Meyer,  from  the  said  divers  persons,  mariners,  as 
aforesaid,  whose  names  are  to  the  jurors  aforesaid  unknown,  in  their  pres 
ence,  then  and  there,  and  against  their  will,  did  then  and  there  piratically, 
feloniously,  and  violently  seize,  rob,  steal,  take,  and  carry  away,  against  the 
form  of  the  statute  of  the  said  United  States  of  America  in  such  case  made 
and  provided,  and  against  the  peace  of  the  said  United  States  and  their 
dignity. 

Fourth  Count:  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present :  That  Thomas  Harrison  Baker,  late  of  the  City  and  County 
of  New  York,  in  the  District  and  Circuit  aforesaid,  mariner  ;  and  John  Har- 
leston,  late  of  the  same  place,  mariner ;  Charles  Sidney  Passalaigue,  late  of 
the  same  place,  mariner ;  Henry  Gashman  Howard,  late  of  the  same  place, 
mariner ;  Joseph  Cruz  del  Carno,  late  of  the  same  place,  mariner ;  Henry 
Oman,  late  of  the  same  place,  mariner ;  Patrick  Daly,  late  of  the  same  place, 
mariner ;  William  Charles  Clark,  late  of  the  same  place,  mariner  ;  Albert 
Gallatin  Ferris,  late  of  the  same  place,  mariner  ;  Richard  Palmer,  late  of  the 
same  place,  mariner ;  John  Murphy,  late  of  the  same  place,  mariner ;  Alex 
ander  Carter  Coid,  late  of  the  same  place,  mariner;  and  Martin  Galvin,  late 
of  the  same  place,  mariner,  on  the  third  day  of  June,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  sixty  one,  upon  the  high  seas,  out  of  the 
jurisdiction  of  any  particular  State,  and  within  the  admiralty  and  maritime 
jurisdiction  of  the  said  United  States  of  America,  and  within  the  jurisdiction 
of  this  Court,  did,  with  force  and  arms,  piratically,  feloniously,  and  violently 
set  upon,  board,  break,  and  enter  a  certain  vessel  then  and  there  being,  to 
wit,  a  brig  called  the  Joseph,  and  in  and  upon  one  Thies  N.  Meyer,  then  and 
there  being  in  and  on  board  of  the  said  brig,  and  being  a  mariner  and  master 
and  commander  of  the  said  brig,  and  the  said  Thies  N.  Meyer  then  and  there 
being  a  citizen  of  the  United  States  of  America,  did  then  and  there  piratically, 
feloniously,  and  violently  make  an  assault,  and  him,  the  said  Thies  N.  Meyer, 
did  then  and  there  piratically,  feloniously,  and  violently  put  in  great  bodily 
fear,  and  the  said  brig,  the  Joseph,  of  the  value  of  $3,000,  and  the  tackle,  ap 
parel,  and  furniture  thereof,  of  the  value  of  $500,  and  250  hogsheads  of  sugar, 
of  the  value  of  $100  each  hogshead,  the  s;niir  thru  and  there  being  of  the  lad 
ing  of  the  said  brig,  of  the  goods,  chattels,  and  personal  property  of  the  said 
Thies  N.  Meyer,  in  his  presence  and  against  his  will,  did  violently,  felo- 


PRELIMINARY   PROCEEDINGS.  IX 

niously,  and  piratically  rob,  steal,  seize,  take,  and  carry  away,  against  the 
form  of  the  statute  of  the  said  United  States  of  America  in  such  case  made 
and  provided,  and  against  the  peace  of  the  said  United  States  and  their 
dignity. 

Fifth  Count:  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  fur 
ther  present :  That  Thomas  Harrison  Baker,  late  of  the  City  and  County  of 
Nev  York,  in  the  District  and  Circuit  aforesaid,  mariner;  and  John  Harleston, 
lat€  of  the  same  place,  mariner ;  Charles  Sidney  Passalaigue,  late  of  the 
sane  place,  mariner ;  Henry  Cashman  Howard,  late  of  the  same  place, 
mariner;  Joseph  Cruz  del  Carno,  late  of  the  same  place,  mariner; 
Heny  Oman,  late  of  the  same  place,  mariner  ;  Patrick  Daly,  late  of  the  same 
plac«,  mariner ;  William  Charles  Clark,  late  of  the  same  place,  mariner ; 
Albert  Gallatin  Ferris,  late  of  the  same  place,  mariner ;  Richard  Palmer,  late 
of  ths  same  place,  mariner ;  John  Murphy,  late  of  the  same  place,  mariner  ; 
Alexmder  Carter  Coid,  late  of  the  same  place,  mariner ;  and  Martin  Galvin, 
late  of  the  same  place,  mariner,  each  being  a  citizen  of  the  United  States  of 
Amerca,  on  the  3d  day  of  June,  in  the  year  of  our  Lord  1801,  upon  the  high 
seas,  out  of  the  jurisdiction  of  any  particular  State,  and  within  the  admiralty 
and  nuritime  jurisdiction  of  the  United  States  of  America,  and  within  the 
jurisdiction  of  this  Court,  in  and  upon  one  Thies  N.  Meyer,  then  and  there 
being,  the  said  Thies  N.  Meyer  then  and  there  being  a  citizen  of  the  said 
United  States,  and  he,  the  said  Thies  N.  Meyer,  then  and  there  being  in  and  on 
board  of  a  certain  American  vessel  of  the  United  States  of  America,  to  wit,  a 
brig  cal'ed  the  Joseph,  and  the  said  brig  then  and  there  being  on  the  high 
seas  as  iforesaid,  did,  piratically,  feloniously  and  violently,  make  an  assault, 
and  him,  the  said  Thies  N.  Meyer,  did,  piratically,  feloniously  and  violently, 
then  ano  there  put  in  bodily  fear,  and  the  said  brig,  the  Joseph,  of  the  value 
of  $3,00(i,  the  tackle,  apparel  and  furniture  of  the  same,  of  the  value  of  $500, 
and  250  hogsheads  of  sugar,  of  the  value  of  $100  each  hogshead,  of  the  goods, 
chattels  tnd  personal  property  of  the  said  Thies  N.  Meyer,  from  the  said 
Thies  N.  Meyer,  and  in  his  presence,  and  against  his  will,  did,  piratically, 
feloniously  and  violently,  seize,  rob,  steal,  take  and  carry  away,  against  the 
form  of  tlie  statute  of  the  said  United  States  of  America  in  such  case  made 
and  provided,  and  against  the  peace  of  the  said  United  States  and  their 
dignity. 

Sixth  Ctunt:  And  the  Jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present :  That  Thomas  Harrison  Baker,  late  of  the  City  and  County 
of  New  York,  in  the  District  and  Circuit  aforesaid,  mariner ;  and  John  Harles 
ton,  late  of  tKe  same  place,  mariner ;  Charles  Sidney  Passalaigue,  late  of  the 
same  place,  mariner ;  Henry  Cashman  Howard,  late  of  the  same  place,  mar 
iner;  Joseph  Cruz  del  Carno,  late  of  the  same  place,  mariner;  Henry  Oman, 
late-  of  the  same  place,  mariner;  Patrick  Daly,  late  of  the  same  place,  mar 
iner  ;  William  Charles  Clark,  late  of  the  same  place,  mariner ;  Albert  Galla 
tin  Ferris,  late  of  the  same  place,  mariner ;  Richard  Palmer,  late  of  the  same 
place,  manner;  John  Murphy,  late  of  the  same  place,  mariner;  Alexander 
Carter  Coid,  late  of  the  same  place,  mariner;  and  Martin  Galvin,  late  of  the 
same  place,  mariner,  on  the  3d  day  of  June,  in  the  year  of  our  Lord  1861, 
upon  the  high  seas,  out  of  the  jurisdiction  of  any  particular  State,  and  with 
in  the  admiralty  and  maritime  jurisdiction  of  the  said  United  States  of  Amer 
ica,  and  within  the  jurisdiction  of  this  Court,  each  then  and  there  being  a 
citizen  of  the  said  United  States  of  America,  did,  on  pretense  of  authority 
from  a  person,  to  wit,  one  Jefferson  Davis,  with  force  and  arms,  piratically, 
feloniously  and  violently  set  upon,  board,  break  and  enter,  a  certain  vessel, 
to  wit,  a  brig  called  the  Joseph,  the  same  being  then  and  there  owned,  in 
whole  or  in  part,  by  a  citizen  or  citizens  of  the  United  States  of  America, 
whose  name  or  names  are  to  the  Jurors  aforesaid  unknown,  and  did,  on  pre- 


X  PRELIMINARY   PROCEEDINGS. 

tense  of  authority  from  a  person,  to  wit,  one  Jefferson  Davis,  then  and  there 
in  and  on  board  of  the  said  brig,  the  Joseph,  in  and  upon  one  Thies  N.  Meyer, 
then  and  there  being  a  mariner,  and  then  and  there  one  of  the  ship's 
company  of  the  said  brig,  the  Joseph,  and  then  and  there  master  and  co.n- 
mander  thereof,  and  in  and  upon  Horace  W.  Bridges,  Albert  Nash,  Williim 
H.  Clanning,  John  J.  Merritt,  John  Quin,  and  Joseph  H.  Golden,  each  tlen 
and  there  being  a  mariner  and  one  of  the  ship's  company  of  the  said  brig,  the 
Joseph,  piratically,  feloniously  and  violently  make  an  assault,  and  them  did, 
on  pretense  of  authority  from  a  person,  to  wit,  one  Jefferson  Davis,  then  md 
there  piratic.illy,  feloniously  and  violently,  put  in  personal  fear  and  danger  of 
their  lives,  and  did,  on  pretense  of  authority  from  a  person,  to  wit,  one  Jef 
ferson  Davis,  then  and  there,  the  brig,  the  said  Joseph,  of  the  value  of  $3,)00, 
and  the  tackle,  apparel  and  furniture  thereof,  of  the  value  of  $500,  and  two 
hundred  and  fifty  hogsheads  of  sugar,  of  the  value  of  $100  each  hogshesd,  of 
the  goods,  chattels  and  personal  property  of  certain  persons  whose  names  are 
to  the  Jurors  aforesaid  unknown,  the  said  two  hundred  and  fifty  hogsieads 
of  sugar  being  then  and  there  in  and  on  board  of  the  said  brig,  and  being  then 
and  there  the  lading  thereof,  and  the  said  brig,  the  tackle,  apparel  and  furni 
ture  thereof  and  the  said  two  hundred  and  fifty  hogsheads  of  sugar,  being 
then  and  there  in  the  care,  custody  and  possession  of  the  said  THes  N. 
Meyer,  Horace  W.  Bridges,  Albert  Nash,  William  II.  Clanning,  John  /.  Mer- 
rit,  John  Quin  and  Joseph  H.  Golden,  from  the  said  Thies  N.  Meyer,  Horace 
W.  Bridges,  Albert  Nash,  William  H.  Clanning,  John  J.  Merritt,  John  Quin 
and  Joseph  H.  Golden,  and  from  their  said  possession,  care  and  custody,  and 
in  their  presence  and  against  their  will,  violently,  piratically  and  feloiiously, 
seize,  rob,  steal,  take  and  carry  away,  against  the  form  of  the  statute  of  the 
said  United  States  of  America  in  such  case  made  and  provided,  anc  against 
the  peace  of  the  said  United  States  and  their  dignity. 

Seventh  Count :  And  the  Jurors  aforesaid  upon  their  oath  aforesaid,  do 
further  present :  That  Thomas  Harrison  Baker,  late  of  the  City  and  County 
of  New  York,  in  the  District  and  Circuit  aforesaid,  mariner ;  and  John  Harles- 
ton,  late  of  the  same  place,  mariner ;  Charles  Sidney  Passalaigue,  !ate  of  the 
same  place,  mariner ;  Henry  Cashman  Howard,  late  of  the  same  place,  mar 
iner  ;  Joseph  Cruz  del  Carno,  late  of  the  same  place,  mariner ;  Henry  Oman, 
late  of  the  same  place,  mariner ;  Patrick  Daly,  late  of  the  same  place,  mar 
iner  ;  William  Charles  Clark,  late  of  the  same  place,  mariner  ;  A'bert  Galla- 
tin  Ferris,  late  of  the  same  place,  mariner  ;  Richard  Palmer,  late  of  the  same 
place,  mariner  ;  John  Murphy,  late  of  the  same  place,  mariner ;  Alexander 
Carter  Coid,  late  of  the  same  place,  mariner ;  and  Martin  Galvh,  late  of  the 
same  place,  mariner,  on  the  third  day  of  June,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  sixty-one,  upon  the  high  seas,  out  of  the  juris 
diction  of  any  particular  State,  and  within  the  admiralty  and  maritime  juris 
diction  of  the  said  United  States  of  America,  and  within  the  jurisdiction  of 
this  Court,  each  then  and  there  being  a  citizen  of  the  said  United  States  of 
America,  did,  on  pretense  of  authority  from  a  person,  to  wit,  one  Jefferson 
Davis,  with  force  and  arms,  piratically,  feloniously  and  violently  set  upon, 
board,  break  and  enter  a  certain  American  vessel,  to  wit,  a  brig  called  the 
Joseph,  the  same  then  and  there  being  owned  in  part  by  George  H.  Cables, 
John  Cables  and  Stephen  Hatch,  then  citizens  of  the  United  States  of 
America,  and  did,  on  pretense  of  authority  from  a  person,  to  wit,  one  Jefferson 
Davis,  then  and  there  in  and  on  board  of  the  said  brig,  the  Joseph,  in  and 
upon  one  Thies  N.  Meyer,  then  and  there  being  a  mariner  and  one  of  the  ship's 
company  of  the  said  brig,  the  Joseph,  and  master  and  commander  thereof, 
and  in  and  upon  divers  other  persons,  each  then  and  there  being  a  mariner, 
and  one  of  the  ship's  company  of  the  said  brig,  the  Joseph,  whose  names  are 
to  the  Jurors  aforesaid  unknown,  piratically,  feloniously  and  violently  make 


PRELIMINARY   PROCEEDINGS.  XI 

an  assault,  and  them  did,  on  pretense  of  authority  from  a  person,  to  wit,  one 
Jefferson  "Davis,  then  and  there,  piratically,  feloniously  and  violently,  put  in 
bodily  fear  and  danger  of  their  lives,  and  did,  on  pretense  of  authority  from 
a  person,  to  wit,  one  Jefferson  Davis,  then  and  there,  the  said  brig,  the  said 
Joseph,  of  the  value  of  $3,000,  and  the  tackle,  apparel  and  furniture  of  the  same, 
of  the  value  of  $500,  of  the  goods,  chattels  and  personal  property  of  George  H. 
Cables,  John  Cables  and  Stephen  Hatch,  citizens  of  the  United  States  of 
America,  and  two  hundred  and  fifty  hogsheads  of  sugar,  of  the  value  of  $100 
each  hogshead,  of  the  goods,  chatties  and  personal  property  of  one  Morales, 
whose  Christian  name  is  to  the  Jurors  aforesaid  unknown,  the  said  sugar 
being  then  and  there  in  and  on  board  the  said  brig,  the  Joseph,  and  being 
then  and  there  the  lading  thereof,  and  the  said  brig,  and  the  tackle,  apparel 
and  furniture  thereof,  and  the  said  two  hundred  and  fifty  hogsheads  of  sugar, 
then  and  there  being  in  the  care,  custody  and  possession  of  the  said  Thies  N. 
Meyer  and  the  said  divers  other  persons,  mariners  as  aforesaid,  and  of  the 
ship's  company  of  the  said  brig,  the  Joseph,  and  whose  names  are  to  the 
Jurors  aforesaid  unknown,  from  the  said  Thies  N.  Meyer  and  the  said  divers 
other  persons,  mariners  as  aforesaid,  and  of  the  ship's  company  of  the  said 
brig,  the  Joseph,  whose  names  are  as  aforesaid  to  the  Jurors  aforesaid  un 
known,  and  from  their  care,  custody  and  possession,  and  in  their  presence 
and  against  their  will,  piratically,  feloniously,  and  violently,  rob,  seize,  steal, 
take  and  carry  away,  against  the  form  of  the  statute  of  the  said  United  States 
of  America  in  such  case  made  and  provided,  and  against  the  peace  of  the  said 
United  States  and  their  dignity. 

Eighth  Count :  And  the  Jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present:  That  Thomas  Harrison  Baker,  late  of  the  City  and  County 
of  New  York,  in  the  District  and  Circuit  aforesaid,  mariner  ;  and  John  Harles- 
ton,  late  of  the  same  place,  mariner;  Charles  Sidney  Passalaigue,  late  of  the 
same  place,  mariner ;  Henry  Cashman  Howard,  late  of  the  same  place,  mar 
iner  ;  Joseph  Cruz  del  Carno,  late  of  the  same  place,  mariner ;  Henry  Oman, 
late  of  the  same  place,  mariner ;  Patrick  Daly,  late  of  the  same  place,  mari 
ner  ;  William  Charles  Clark,  late  of  the  same  place,  mariner ;  Albert  Gallatin 
Ferris,  late  of  the  same  place,  mariner ;  Richard  Palmer,  late  of  the  same 
place,  mariner ;  John  Murphy,  late  of  the  same  place,  mariner ;  Alexander 
Carter  Coid,  late  of  the  same  place,  mariner ;  and  Martin  Galvin,  late  of  the 
same  place,  mariner,  on  the  3d  day  of  June,  in  the  year  of  our  Lord,  1861, 
upon  the  high  seas,  out  of  the  jurisdiction  of  any  particular  State  and  within 
the  admiralty  and  maritime  jurisdiction  of  the  said  United  States  of  America 
and  within  the  jurisdiction  of  this  Court,  each  then  and  there  being  a  citizen 
of  the  said  United  States  of  America,  did,  on  pretense  of  authority  from  a 
person,  to  wit,  one  Jefferson  Davis,  with  force  and  arms,  piratically,  feloni 
ously,  and  violently,  set  upon,  board,  break,  and  enter  a  certain  vessel,  to  wit,  a 
brig,  called  the  Joseph,  then  and  there  being  owned  by  certain  persons,  citi 
zens  of  the  United  States  of  America,  to  wit,  George  H.  Cables,  John  Cables, 
and  Stephen  Hatch,  of  Rockland,  in  the  State  of  Maine,  and  in  and  upon  cer 
tain  divers  persons  whose  names  are  to  the  Jurors  aforesaid  unknown,  the 
said  last-mentioned  persons  each  being  then  and  there  a  mariner,  and  of  the 
ship's  company  of  the  said  brig  called  the  Joseph,  and  then  and  there  being 
in  and  on  board  of  the  said  brig,  the  Joseph,  did,  on  pretense  of  authority 
from  a  person,  to  wit,  one  Jefferson  Davis,  then  and  there,  piratically,  feloni 
ously,  and  violently,  make  an  assault,  and  them  did,  on  pretense  of  author 
ity  from  a  person,  to  wit,  one  Jefferson  Davis,  then  and  there,  piratically, 
feloniously,  and  violently,  put  in  bodily  fear,  and  the  said  brig,  the  Joseph, 
of  the  value  of  $3,000,  and  the  apparel,  tackle,  and  furniture  thereof,  of  the 
value  of  $500,  of  the  goods,  chattels,  and  personal  property  of  the  said 
George  H.  Cables,  John  Cables,  and  Stephen  Hatch,  and  250  hogsheads  of 


xii  PRELIMINARY   PROCEEDINGS. 

sugar,  of  the  value  of  $100  each  hogshead,  of  the  goods,  chattels,  and  per 
sonal  property  of  one  Thies  N.  Meyer,  from  the  said  divers  persons,  mariners 
as  aforesaid,  whose  names  are  to  the  Jurors  aforesaid  unknown,  in  their  pres 
ence,  then  and  there,  and  against  their  will,  did,  on  pretense  of  authority 
from  a  person,  to  wit,  one  Jefferson  Davis,  then  and  there,  piratically,  feloni 
ously,  and  violently,  seize,  rob,  steal,  take  and  carry  away,  against  the  form 
of  the  statute  of  the  said  United  States  of  America  in  such  case  made  and 
provided,  and  against  the  peace  of  the  said  United  States  and  their  dignity. 

Ninth  Count :   And  the  Jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present :  That  Thomas  Harrison  Baker,  late  of  the  City  and  County 
of  New  York,  in  the  District  and  Circuit  aforesaid,  mariner  ;  and  John  Har- 
leston,  late  of  the  same  place,  mariner ;  Charles  Sidney  Passalaigue,  late  of 
the  same  place,  mariner ;  Henry  Cashman  Howard,  late  of  the  same  place, 
mariner ;  Joseph  Cruz  del  Carno,  late  of  the  same  place,  mariner ;  Henry 
Oman,  late  of  the  same  place,  mariner  ;  Patrick  Daly,  late  of  the  same  place, 
mariner ;  "William  Charles  Clark,  late  of  the  same  place,  mariner ;  Albert 
Gallatin  Ferris,  late  of  the  same  place,  mariner ;  Richard  Palmer,  late  of  the 
same  place,  mariner ;  John  Murphy,  late  of  the  same  place,  mariner ;  Alex 
ander  Carter  Coid,  late  of  the  same  place,  mariner ;  and  Martin  Galvin,  late 
of  the  same  place,  mariner,  on  the  3d  day  of  June,  in  the  year  of  our  Lord 
1861,  upon  the  high  seas,  out  of  the  jurisdiction  of  any  particular  State,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  said  United  States  of 
America,  and  within  the  jurisdiction  of  this  Court,  each  then  and  there  be 
ing  a  citizen  of  the  said  United  States  of  America,  did,  on  pretense  of  au 
thority  from  a  person,  to  wit,  one  Jefferson  Davis,  with  force  and  arms,  pirat 
ically,  feloniously,  and  violently  set  upon,  board,  break,  and  enter  a  certain 
vessel  then  and  there  being,  to  wit,  a  brig  called  the  Joseph,  and  in  and  upon 
one  Thies  N.  Meyer,  then  and  there  being  in  and  on  board  of  the  said  brig, 
and  being  a  mariner  and  master  and  commander  of  the  said  brig,  and  the 
said  Thies  N.  Meyer  then  and  there  being  a  citizen  of  the  United  States  of 
America,  did,  on  pretense  of  authority  from  a  person,  to  wit,  one  Jefferson 
Davis,  then  and  there,  piratically,  feloniously,  and  violently,  make  an  assault, 
and  him,  the  said  Thies  N.  Meyer,  did,  on  pretense  of  authority  from  a  per 
son,  to  wit,  one  Jefferson  Davis,  then  and  there,  piratically,  feloniously,  and 
violently,  put  in  great  bodily  fear,  and  the  said  brig,  the  Joseph,  of  the  value 
of  $3,0(JO,  and  the  tackle,  apparel,  and  furniture  thereof,  of  the  value  of 
$500,  and  250  hogsheads  of  sugar,  of  the  value  of  $100  each  hogshead,  the 
same  then  and  there  being  of  the  lading  of  the  said  brig,  of  the  goods,  chat 
tels,  and  personal  property  of  the  said  Thies  N.  Meyer,  in  his  presence  and 
against  his  will,  did,  on  pretense  of  authority  from  a  person,  to  wit,  one  Jef 
ferson  Davis,  violently,  feloniously,  and  piratically,  rob,  steal,  seize,  take,  and 
carry  away,  against  the  form  of  the  statute  of  the  said  United  States  of 
America  in  such  Case  made  and  provided,  and  against  the  peace  of  the  said 
United  States  and  their  dignity. 

Tenth  Count :  And  the  Jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present:  That  Thomas  Harrison  Baker,  late  of  the  City  and  County 
of  New  York,  in  the  District  and  Circuit  aforesaid,  mariner  ;  and  John  Harles- 
ton,  late  of  the  same  place,  mariner;  Charles  Sidney  Passalaigue,  late  of  the 
same  place,  mariner;  Henry  Cashman  Howard,  late  of  the  same  place,  mar 
iner;  Joseph  Cruz  del  Carno,  late  of  the  same  place,  mariner;  Henry  Oman, 
late  of  the  same  place,  mariner;  Patrick  Daly,  late  of  the  same  place,  mar 
iner;  William  Charles  Clark,  late  of  the  same  place,  mariner  ;  Albert  Gallatin 
Ferris,  late  of  the  same  place,  mariner;  Richard  Palmer,  late  of  the  same 
place,  mariner  ;  John  Murphy,  late  of  the  same  place,  mariner ;  Alexander 
Carter  Coid,  late  of  the  same  place,  mariner;  and  Martin  Galvin,  late  of  the 
same  place,  mariner,  each  being  a  citizen  of  the  United  States  of  America, 


PRELIMINARY    PROCEEDINGS.  Xlll 

on  the  3d  day  of  June,  in  the  year  of  our  Lord  1861,  upon  the  high  §eas, 
out  of  the  jurisdiction  of  any  particular  State,  and  within  the  admiralty  and 
maritime  jurisdiction  of  the  United  States  of  America,  and  within  the  juris 
diction  of  this  Court,  in  and  upon  one  Thies  N.  Meyer,  then  and  there  being, 
the  said  Thies  N.  Meyer,  then  and  there  being  a  citizen  of  the  said  United 
States,  and  he,  the  said  Thies  N.  Meyer,  then  and  there  being  in  and  on  board 
of  a  certain  American  vessel,  of  the  United  States  of  America,  to  wit,  a  brig 
called  the  Joseph,  and  the  said  brig  then  and  there  being  on  the  high  seas  as 
aforesaid,  did,  on  pretense  of  authority  from  a  person,  to  wit,  one  Jefferson 
Davis,  piratically,  feloniously  and  violently,  make  an  assault,  and  him,  the 
said  Thies  N.  Meyer,  did,  on  pretense  of  authority  from  a  person,  to  wit,  one 
Jefferson  Davis,  piratically,  feloniously  and  violently,  then  and  there  put  in 
bodily  fear,  and  the  said  brig,  the  Joseph,  of  the  value  of  $3,000,  the  tackle, 
apparel  and  furniture  of  the  same,  of  the  value  of  $500,  and  250  hogsheads 
of  sugar,  of  the  value  of  $100  each  hogshead,  of  the  goods,  chattels  and  per 
sonal  property  of  the  said  Thies  N.  Meyer,  from  the  said  Thies  N.  Meyor,  and 
in  his  presence,  and  against  his  will,  did,  on  pretense  of  authority  from  a  person, 
to  wit,  one  Jefferson  Davis,  piratically,  feloniously  and  violently  seize,  rob, 
steal,  take  and  carry  awray,  against  the  form  of  the  statute  of  the  said  United 
States  of  America  in  such  case  made  and  provided,  and  against  the  peace  of 
the  said  United  States  and  their  dignity. 

And  the  Jurors  aforesaid,  on  their  oath  aforesaid,  do  further  present: 
That  the  Southern  District  of  New  York,  in  the  Second  Circuit,  is  the  dis 
trict  and  circuit  in  which  the  said  Thomas  Harrison  Baker,  John  Harleston, 
Charles  Sidney  Passalaigue,  Henry  Cashma,n  Howard,  Joseph  Cruz  del  Carno, 
Henry  Oman,  Patrick  Daly,  William  Charles  Clark,  Albert  Gallatin  Ferris, 
Richard  Palmer,  John  Murphy,  Alexander  Carter  Coid,  and  Martin  Galvin, 
were  brought  and  in  which  they  were  found,  and  is  the  district  and  circuit 
where  they  were  apprehended,  and  into  which  they  were  first  brought,  for 
the  said  offense. 

E.  DELAFIELD  SMITH, 

Attorney  of  the  United  States  for  the  Southern  District 
of  New  York. 


On  Wednesday,  the  seventeenth  of  July,  the  prisoners 
were  brought  into  Court  to  plead  to  the  Indictment,  when 
MR.  E.  DELAFIELD  SMITH, 'United  States  District  Attorney, 
said  : 

If  the  Court  please, — In  the  case  of  Baker  and  others,  the 
prisoners  now  at  the  bar,  indicted  for  robbery  on  the  high 
seas,  I  move  that  they  be  arraigned.  I  may  here  remark,  that 
I  have  caused  the  service  of  a  notice  of  this  motion  upon  all 
the  counsel  known  to  me  as  engaged  in  the  case ;  and  if  any 
gentleman  has  not  received  a  notification,  the  omission  pro 
ceeds  from  the  fact  that  his  name  has  not  been  given  to  the 
District  Attorney.  I  understand  that  Mr.  Larocque  is  counsel 
i'or  one  or  two  of  the  prisoners,  and  that  he  is  in  the  building. 

Mr.  Larocque  here  entered  the  Court. 


XIV  PRELIMINARY    PROCEEDINGS. 

The  District  Attorney :  I  would  now  renew  my  motion 
that  the  prisoners  at  the  bar  be  arraigned  under  the  indict 
ment  presented  yesterday. 

Mr.  Larocque:  If  your  honor  please,  I  represent  but  one 
of  the  prisoners.  There  are  other  counsel,  I  believe,  who  re 
present  them  generally.  I  appear  for  Mr.  Harleston  (the 
mate),  and  I  will  now  state  what  I  have  to  say  with  respect 
to  the  motion  made  by  the  District  Attorney.  Mr.  Daniel 
Lord  is  associated  with  me,  and  I  believe  he  is  now  engaged 
in  the  adjoining  Court,  but  will  soon  be  here.  The  Court  will 
perceive  that  the  learned  District  Attorney  has  very  properly 
taken  a  considerable  period  of  time  for  the  framing  of  this  in 
dictment.  It  is  some  weeks  now  since  the  warrant  of  arrest 
was  issued,  and  the  course  which  he  has  taken  certainly  de 
serves  great  commendation  :  for  the  indictment  in  this  case, 
more  than  any  other  that  has  ever  been  found  in  this  Court, 
required  greater  care  in  its  preparation,  and  it  is  one  which 
will  certainly  present  more  important  questions  than  probably 
any  that  has  ever  been  tried  in  this  Court.  The  indictment 
was  only  presented  yesterday,  and,  as  far  as  I  am  concerned, 
1  was  only  informed  of  its*  presentation  late  yesterday  after 
noon.  Of  course,  I  had  no  opportunity  to  examine  it.  1  be 
lieve  it  is  quite  a  voluminous  document,  and  contains  a  great 
many  counts ;  and  before  the  prisoners  at  the  bar  would  be 
prepared  to  plead  to  the  indictment,  it  will  certainly  be  neces 
sary  that  their  counsel  should  examine  it  with  care,  and  determ 
ine  what  course  to  take  with  regard  to  it ;  and  then,  probably, 
there  may  be  some  application  that  it  will  be  necessary  to 
make  to  the  Court  before  the  prisoners  will  be  prepared  to 
plead.  I  therefore  desire  a  postponement  for  that  purpose, 
until  we  can  have  time  to  examine  this  indictment. 

The  District  Attorney :  I  doubt  not  it  is  proper  that  time 
should  be  given  to  examine  this  indictment,  and  to  adopt 
such  course  with  respect  to  it  as  gentlemen  standing  in  the 
sacred  relation  of  counsel  may  deem  it  their  duty  to  take.  I 
should  be  very  glad,  however,  if  that  time  could  be,  with 
due  regard  to  the  convenience  of  counsel,  so  near  as  that  the 
pleas  may  be  recorded  and  the  trial  set  down  for  some  clay 
before  the  Court  adjourns.  I  shall  be  ready,  if  your  honor 
please,  on  behalf  of  the  Government,  to  try  the  prisoners  on 
any  day.  1  shall  be  prepared  to  try  them  within  two  or  three 
days ;  but,  certainly,  it  is  right  that  counsel  should  have  time 
to  examine  the  indictment,  as  suggested.  I  hope  only  that 
such  examination  may  be  made  speedily,  as  I  understand  your 
honor  will  adjourn  the  Court  at  an  early  day. 


PRELIMINARY    PROCEEDINGS.  XT 

Mr.  Larocquc :  It  would  be  utterly  impossible  for  this  case 
to  be  tried  this  term.  In  conversation  with  the  counsel  for  the 
Government,  a  few  days  ago,  the  gentleman  himself  declared 
that  the  case  could  not  be  tried  this  term  of  the  Court,  and  it 
would  be  impossible,  your  honor,  for  us  to  be  ready  for  trial 
during  this  term.  It  will  be  necessary  for  us  to  obtain  testi 
mony  from  abroad,  out  of  the  limits  of  this  State,  and  that 
cannot  be  procured  in  time  to  try  the  case  this  term.  Certain 
ly,  no  interest  of  public  justice  can  suffer  by  a  delay  of  the 
trial  of  this  case ;  and  I  think  it  is  eminently  proper,  and  I 
am  sure  the  Court  will  agree  with  me,  that  a  proceeding  of 
this  importance  should  be  conducted  with  deliberation,  and 
that  ample  time  should  be  given  to  the  prisoners  to  prepare 
their  defence.  I  had  understood,  moreover,  that  some  intima 
tion  had  been  made  by  your  honor's  associate  on  the  bench 
(Judge  Nelson)  that  he  would  attend  upon  the  trial  of  this 
case.  I  am  told  that  Judge  Nelson  met  with  an  accident 
shortly  after  his  return  home  from  his  attendance  upon  his 
judicial  duties,  by  being  run  away  with  by  a  horse,  and  that 
he  is  so  lame  that  he  is  unable  to  move  at  present ;  and  I  am 
very  credibly  assured  that  Judge  Nelson  has  expressed  his 
conviction  that  it  was  his  duty  to  attend  and  to  sit  on  the  trial 
of  this  case.  Very  important  questions  of  law  will  be  pre 
sented,  and  your  honor  is  aware  that  in  a  criminal  case  in  this 
Court  there  is  no  writ  of  error.  The  prisoner  has  the  right  to  a 
review  of  any  decision  that  might  be  made  in  this  Court,  in 
case  a  difference  of  opinion  should  arise  between  the  Judges 
who  preside.  And  certainly,  in  a  case  of  such  great  import 
ance  as  this  is,  where  the  lives  of  so  many  prisoners  are  at 
stake,  it  is  of  the  utmost  consequence  that  there  should  be  a 
full  Court  present  when  the  prisoners  are  tried.  So  far  with 
respect  to  the  trial  of  the  case.  Now,  your  honor  is  also  aware 
that,  by  the  statutes  of  the  United  States,  the  prisoners  have  a 
right  to  a  certain  period  of  time  before  any  movement  can  be 
made  with  a  view  to  trial.  We  certainly  cannot  be  ready  to 
plead  to  this  indictment  in  less  than  a  week. 

The  District  Attorney :  The  Court  will  permit  a  single  re 
mark  concerning  the  conversation  to  which  my  learned  friend 
has  alluded.  I  never  intended  to  say  decidedly  that  the  trial 
could  not  take  place  during  the  present  term.  I  did,  however, 
at  one  time,  express  an  opinion  that,  as  the  term  was  nearly 
ended,  and  as  the  summer  was  upon  us,  probably  I  should  not 
succeed  in  bringing  the  case  on  for  trial  until  the  autumn. 
As,  however,  the  indictment  has  been  promptly  found,  delay 
till  fall  is,  I  trust,  unnecessary.  Events  continually  taking 
place  upon  the  ocean  seem  to  render  it  important  that  the  trial 


XVI  PRELIMINARY    PROCEEDINGS. 

should  take  place  at  an  early  day.  With  these  suggestions, 
I  leave  the  matter  entirely  with  the  Court,  where,  of  course,  it 
ultimately  belongs. 

Mr.  Sullivan :  May  it  please  the  Court,  I  appear  for  Cap 
tain  Baker,  the  first  prisoner  named  in  the  indictment. 

Judge  Shipman  asked  who  appeared  for  the  other  prisoners. 
He  wished  to  know  if  all  the  prisoners  were  supplied  with 
counsel ;  if  not,  he  would  assign  them  counsel. 

Mr.  Sullivan  said  he  did  not  desire  a  week's  postponement, 
as  he  understood  his  honor  had  intimated  that  the  Court  would 
adjourn  on  Wednesday.  As  to  the  time  of  trial,  he  was 
authorized  and  instructed  specially  to  say  for  Captain  Baker 
that  he  would  ask  for  no  delay  other  than  what  was  absolutely 
necessary  for  his  counsel  to  prepare.  He  (Mr.  Sullivan)  hoped 
that  the  Court  would  continue  its  session  specially  to  hear  the 
case,  or  at  least  to  try  some  portion  of  the  defendants.  He 
made  that  remark  on  the  presumption  that  the  defendants 
would  ask  to  be  tried  separately. 

Mr.  Mayer£&\<\.  he  appeared  for  one  of  the  seamen,  Wm.  C. 
Clark  ;  and  he  concurred  in  Mr.  Larocque's  remarks. 

Judge  Shipman  :  It  is  hardly  necessary  now  to  discuss  when 
the  case  will  be  set  down  for  trial.  The  motion  now  before 
the  Court  is  for  the  arraignment  of  the  prisoners,  and  counsel 
asks  for  time  to  plead.  I  should  like  to  know  the  names  of  the 
counsel  who  appear  for  the  prisoners. 

Mr.  Larocque  said  he  appeared,  in  conjunction  with  Mr. 
Lord,  for  Mr.  Harleston. 

Mr.  Ridgway  appeared  for  the  sailors  Carno,  Oman, 
Daly,  Palmer,  Murphy,  Galvin,  and  Coid  ;  and  he,  also,  con 
curred  in  the  motion  for  time  to  plead. 

Mr.  Sandford  appeared  for  Albert  G.  Ferris,  and  desired 
that  the  trial  should  be  brought  on  as  speedily  as  possible. 

The  District  Attorney :  I  have  a  suggestion  to  make  as  to 
the  time  of  pleading.  With  regard  to  the  indictment,  when 
counsel  come  to  examine  it,  I  think  they  will  find,  that  al 
though  the  counts  are  numerous,  yet,  after  'all,  the  indictment 
is  simple.  I  would  suggest  that  counsel  should  examine  the 
record  between  this  and  to-morrow  morning,  and  then  the 
prisoners  could  undoubtedly  be  arraigned  without  objection. 

Mr.  Daniel  Lord:  I  perceive  that  the  prisoners  are 
brought  here  to  plead  in  chains.  If  that  is  to  be  repeated  each 


PRELIMINARY   PROCEEDINGS.  XV11 

time  they  are  brought  here,  I  would  wish  to  have  the  time 
named  when  they  are  to  plead. 

Mr.  James  T.  Brady  said  that  he  believed  the  engagement 
under  which  he  acted,  in  connection  with  some  other  gentle 
men,  covered  the  cases  of  all  the  accused  who  had  not  already 
been  represented  before  his  honor  by  distinct  counsel. 

Judge  Shipman :  There  is  no  necessity,  then,  for  the  Court 
to  assign  counsel  ? 

Mr.  Brady :  In  response  to  your  honor,  allow  me  to  say 
that  I  represent  Captain  Baker  more  particularly.  From  the 
very  necessity  of  this  case  a  number  of  counsel  have  been  em 
ployed,  and  more,  probably,  than  will  take  part,  as  your  honor 
is  well  aware,  in  the  trial.  I  have  had  the  pleasure  of  confer 
ring  with  Mr.  Lord  only  once  since  this  case  arose ;  and  as  he 
is  in  every  respect  the  senior  of  the  gentlemen  who  are  em 
ployed  in  the  case,  we  should  like  an  opportunity  for  confer 
ence.  It  is  highly  important  to  determine  what  species  of  plea 
should  be  put  into  the  indictment ;  and  while,  as  I  remarked, 
all  the  counsel  may  not  take  a  prominent  part  in  the  argument 
or  the  trial,  yet  their  judgments  ought  to  be  considered  by  each 
other,  and  some  decisive  course  concluded  upon.  There  cer 
tainly  can  be  no  great  occasion  for  rfurry,  as  these  men  are 
closely  confined,  and  certainly  are  under  the  closest  kind  of 
restraint,  from  what  I  see  around  me  (glancing  at  the  prisoners, 
handcuffed).  I  don't  suppose  there  is  any  apprehension,  even 
if  the  prison  doors  were  opened,  that  they  would  be  likely  to 
escape,  from  the  state  of  feeling  which  at  present  exists  in  this 
city  and  this  section  of  the  country.  We  only  wish  for  time 
that  is  necessary  to  determine  what  kind  of  an  answer  to  make 
to  this  indictment ;  and  after  that  we  will  proceed,  I  venture 
to  say,  with  the  utmost  diligence,  to  have  this  case  prepared 
for  trial,  or  it  may  probably  turn  out  that  there  will  be  no 
necessity  for  any  trial.  That  may  occur  to  a  legal  mind,  or  it 
may  not. 

Judge  Shipman :  Well,  let  the  prisoners  be  remanded  until 
Tuesday  morning  next. 

The  Court  then  adjourned. 

On  Tuesday,  the  twenty -third  of  July,  the  prisoners  were 
again  brought  into  Court,  and  were  placed  within  the  bar,  at 
the  south  end  of  the  room. 

E.  Delafield  Smith)  Esq.)  District  Attorney,  moved  that  the 
prisoners  be  arraigned. 


XV111  PRELIMINARY   PROCEEDINGS. 

Algernon  S.  Sullivan,  Esq.,  of  counsel  for  the  prisoners, 
stated  that  all  the  prisoners  were  represented  by  counsel,  and 
that  they  were  acquainted  with  the  charges  contained  in  the 
indictment. 

The  prisoners  were  ordered  to  stand  up ;  and  the  Clerk  of 
the  Court  called  T.  Harrison  Baker,  saying  :  "  You  have  been 
indicted  for  robbery  on  the  high  seas ;  how  do  you  plead— 
guilty,  or  not  guilty?"  To  which  Mr.  Baker  replied,  "Not 
guilty." 

The  District  Attorney  suggested  that  the  indictment  be 
read  to  the  prisoners,  unless  each  one  of  them  expressly  waived 
the  reading.  He  would  prefer  to  have  it  read,  however. 

The  prisoners'  counsel  respectively  submitted  that  it  was  of 
no  consequence.  The  accused  knew  the  contents  of  it. 

Judge  Shipman  remarked  that  the  reading  of  the  indict 
ment  would  consume  some  time ;  but  the  District  Attorney 
said  that  questions  had  been  raised  on  this  point,  and,  to  in 
sure  regularity,  he  desired  to  have  the  indictment  read  ;  where 
upon  the  Court  ordered  the  Clerk  to  read  the  instrument. 

At  the  conclusion  *>f  the  reading,  the  prisoners  severally 
pleaded,  each  for  himself,  "  not  guilty." 

District  Attorney  Smith :  If  the  Court  please,  the  facts  in 
this  case  are  exceedingly  simple.  The  evidence  in  reference 
to  them — as  well  such  as  is  required  by  the  prosecution,  as 
that  which  we  may  suppose  to  be  desired  by  the  defendants — 
is  within  a  narrow  range  and  easily  attainable.  I  have  exam 
ined  the  testimony  with  care.  There  can  be  no  doubt,  upon 
the  evidence  in  the  case,  that  the  prisoners  are  guilty,  and  that 
as  a  matter  of  law,  as  well  as  a  matter  of  'fact,  they  ought  to 
be  convicted.  It  is  impossible  to  close  our  eyes  to  the  facts 
relating  to  this  case,  as  they  bear  upon  what  is  daily  taking 
place  upon  the  high  seas.  The  merchant  marine  of  the  coun 
try  is  subjected  to  piratical  seizure  from  day  to  day.  Murder 
is  the  natural  child  of  robbery,  and  we  may  daily  expect  to 
hear  of  bloodshed  on  the  ocean,  in  attempting  the  execution 
of  the  purpose  conceived  by  so  many  of  our  countrymen,  to 
deal  a  death-blow  to  American  commerce. 

It  seems  to  me,  that  the  ends  of  public  justice  require  that 
I  should  urge  upon  your  Honor  the  propriety  and  necessity  of 
an  early  trial  of  this  issue.  If,  peradventure,  the  prisoners  are 
innocent,  it  can  work  no  injury  to  them  ;  if  guilty,  they  ought 
to  be  convicted,  and  in  my  judgment,  the  law  ought  to  take  its 


PRELIMINARY   PROCEEDINGS.  XIX 

course  to  the  end,  in  order  that;  an  example  may  be  set  to 
those  who  are  pursuing  the  species  of  marauding,  of  which  I 
think  the  testimony  will  show  the  prisoners  to  have  been 
guilty. 

I  respectfully  urge,  that  the  trial  be  set  down  for  Wednes 
day,  July  31st,  a  week  from  to-morrow.  I  may  add  that  I 
shall  be  happy  to  render  to  the  counsel  for  the  prisoners  every 
facility  within  my  power  for  the  presentation  of  all  the  facts. 
The  plea  of  authority,  which  we  can  anticipate,  is  set  forth  in 
the  indictment,  and  a  copy  of  the  letter  of  marque  has  been 
furnished  to  counsel  for  the  defence.  I  can  see  no  valid  reason 
for  postponing  the  trial ;  none,  certainly,  in  the  present  state 
of  the  country. 

Mr.  Laroeqiw  said,  it  seemed  to  him  the  idea  might  have 
occurred  to  the  District  Attorney,  that  these  men  had  not 
yet  been  convicted.  The  law  presumed  every  man  to  be 
innocent  until  he  was  proved  guilty.  The  counsel  should 
not  presume  these  men  to  be  guilty  until  they  were  tried. 
There  were  questions  of  international  law  involved  in  this 
case  which  would  be  entitled  to  consideration.  The  coun 
sel  for  the  United  States  would  learn  that  he  had  mis 
understood  the  meaning  of  the  statute  under  which  these  men 
were  indicted.  The  prisoners'  counsel  were  not  ready.  They 
required  documentary  evidence  and  witnesses  to  be  procured 
from  a  distance.  They  could  not  be  ready  to  go  on  at  this 
term  of  the  Court.  He  submitted  that  a  cause  of  this  magni 
tude  should  not* be  disposed  of  so  hurriedly.  What  had  the 
prisoners  to  do  with  others  on  the  ocean  ?  Did  the  counsel 
for  the  Government  desire  to  hurry  them  to  trial  unprepared 
for  the  purpose  of  striking  terror  to  those  on  the  ocean  ?  He 
could  not  believe  it  to  be  so. 

Mr.  Sullivan  said  the  prisoners  would  not  ask  any  further 
delay  after  procuring  their  testimony.  Some  of  the  evidence 
could  not  be  obtained  this  side  of  Charleston,  and  it  would  be 
impossible  to  procure  it  under  three  or  four  weeks.  The  case 
involved  the  legal  status  between  the  United  States  and  the 
seceded  States.  He  opposed  setting  down  the  case  for  trial  on 
next  Wednesday. 

Mr.  Davcga,  of  counsel  for  the  prisoners,  also  opposed  the 
motion,  reiterating  the  statements  in  relation  to  the  testimony 
to  be  procured. 

Mr.  Mayer  called  the  attention  of  the  District  Attorney  to 
the  fifth  count  of  the  indictment,  describing  the  prisoners  as 
citizens  of  the  United  States.  His  client  was  a  citizen  of  Ham- 


XX  PRELIMINARY  PROCEEDINGS. 

burg,  and  he  would  not  be  ready  to  try  the  case  in  several 
weeks. 

Mr.  Daniel  Lord,  in  behalf  of  Mr.  Haiieston,  said  this  case 
involved  the  lives  of  thirteen  men.  If  the  District  Attorney 
supposed  the  law  of  the  case  was  simple,  he  took  a  very  differ 
ent  view  of  it  from  what  that  gentleman  did. 

The  District  Attorney,  in  reply,  said  that  in  respect  to  the 
intimation  of  a  necessity  to  refer  to  Charleston,  it  was  a  mat 
ter  of  notoriety  that  the  prisoners  were  in  constant  communica 
tion  with  that  city.  Counsel  were  bound  to  disclose  the  nature 
of  testimony  required,  that  the  Court  might  judge  of  the  suffi 
ciency  of  the  reasons  for  a  postponement.  Much  of  it  might 
be  to  facts  which  the  prosecution  would  admit ;  as,  in  refer 
ence  to  the  question  of  citizenship,  there  would  be  no  diffi 
culty  in  conceding  the  fact  that  certain  of  the  prisoners  were 
not  citizens  of  the  United  States.  He  was  not  tenacious  as  to 
the  very  day  named.  Without  throwing  the  case  over  to  the 
fall  term,  the  trial  could  be  so  fixed  as  to  afford  counsel  ample 
opportunity  to  collect  their  proofs  and  examine  the  ques 
tions  of  law  involved.  All  the  difficulties  suggested  to  impede 
the  trial  were  obstructions  created  by  these  defendants  them 
selves  and  their  confederates,  and  it  was  in  the  nature  of  tak 
ing  advantage  of  their  own  wrong  to  seek  a  postponement  be 
cause  of  the  existence  of  a  state  of  things  for  which  they  were 
responsible.  It  had  been  said,  thirteen  lives  are  at  issue.  He 
would  say  that  many  more  lives  were  at  stake — lives,  in  his 
judgment,  of  far  greater  value— the  lives  of  innocent  officers 
and  sailors  in  the  merchant  marine.  The  facts  are  simple. 
The  law  appears  to  be  certain.  There  can  be  no  defence  here, 
the  nature  of  which  is  not  visible.  The  only  justification  for 
the  piracy  would  seem  to  be  the  treason.  If  the  prisoners 
ought  justly  to  be  convicted,  such  conviction  should  be  speedy, 
in  order  to  deter  their  confederates  from  expeditions  partaking 
of  the  character  of  both  treason  and  piracy. 

Judge  Shipman  said,  that  he  had  no  doubt  in  relation  to  the 
disposition  to  be  made  of  this  motion.  The  Court  could  not 
have  several  sets  of  rules  to  apply  at  will  to  the  same  class  of 
cases ;  and  even  if  the  Court  had  power  to  adopt  a  different 
rule  in  some  criminal  cases  from  that  fixed  in  others  of  the 
same  grade,  it  would  be  very  questionable  whether  suoh  power 
ought  to  be  exercised.  The  law  had  made  no  distinction  in 
regard  to  this  class  of  criminal  offences.  Upon  the  statute 
book  of  the  United  States  are  various  acts  of  Congress  defining 
atrocious  crimes  punishable  capitally ;  and  among  these,  is  the 


PRELIMINARY   PROCEEDINGS.  XXI 

crime  of  piracy,  or  robbery  upon  the  high  seas,  for  which  the 
defendants  are  indicted.  In  all  cases  where  parties  are  charged 
with  criminal  offences,  and  especially  with  capital  crimes,  it  is 
customary  to  give  the  defendants  a  reasonable  time  for  the 
preparation  of  their  defence ;  and  the  Court  must  always  as 
sume  and  act,  so  far  as  the  technical  proceedings  are  concerned, 
upon  the  presumption  of  innocence  which  the  law  always  inter 
poses.  The  Court  cannot  take  into  consideration  many  of  the 
suggestions  made  by  counsel  for  the  Government  or  for  the  de 
fence;  and  in  disposing  of  this  motion,  I  wish  it  to  be  distinctly 
understood  that  I  do  so  just  as  I  should  in  any  other  case  of 
alleged  robbery  or  piracy  upon  the  high  seas,  where,  if  the  de 
fendants  be  convicted,  they  must  suffer,  according  to  the  stat 
ute,  the  penalty  of  death.  I  cannot  look  at  other  considera 
tions.  I  cannot  anticipate  other  defences.  In  the  administra 
tion  of  the  criminal  law,  although  the  principles  are  usually 
very  simple,  and  although,  for  aught  I  know,  they  may  be  as 
simple  when  applied  to  this  case  as  to  any  other,  yet  in  the  ap 
plication  of  those  principles,  there  is  often  ground  for  difference 
of  opinion.  Courts  that  have  been  long  regarded  as  entitled  to 
very  great  respect  for  learning,  discrimination,  and  experience, 
frequently  differ  as  to  the  application  of  principles  of  law  to 
particular  cases.  In  view  of  this  fact,  in  capital  cases,  it  has 
been  a  rule  usually  adhered  to  in  the  United  States  Circuit 
Courts  (which  are  so  constituted  by  the  Act  of  Congress  that 
two  Judges  are  authorized  to  sit)  to  have,  if  applied  for,  a  full 
Court,  so  that  the  defendant  might  have  the  benefit,  if  I  may 
so  speak,  of  the  chance  of  a  division  of  opinion.  For  such 
division  of  opinion  constitutes  the  only  ground  upon  which  the 
case  can  be  removed  to  a  higher  Court  for  revision.  In  this 
view  of  the  case,  and  upon  the  strenuous  application  of  the  de 
fendants  for  the  presence  of  a  full  Court,  I  certainly  cannot 
den}7  the  application  consistently  with  my  judgment  of  what 
is  right  and  proper  ;  and  I  say  this  with  a  full  recognition  of 
the  importance  of  this  trial.  I  might  add,  it  may  be  desirable 
for  the  Government,  in  the  event  of  a  certain  determination  of 
this  case,  that  in  the  preliminary  proceedings — the  time  fixed 
for  trial  and  the  constitution  of  the  Court — there  should  be 
nothing  to  weaken  the  full  and  appropriate  effect  of  such  deter 
mination. 

After  some  observations  in  regard  to  two  exceptional  cases 
—that  of  Gordon,  on  his  first  trial  for  engaging  in  the  slave 
trade,*  and  the  case  of  the  parties  convicted  of  murder  on 

*  The  second  trial  of  Gordon,  resulting  in  a  conviction,  took  place  before  a  full 
Court,  Mr.  Justice  NELSON  sitting  with  Judge  SEBPMAN. 


XXI 1  PRELIMINARY   PROCEEDINGS. 

board  the  ship  "  Gen.  Parkhill,"  both  cases  having  been  tried 
before  a  District  Judge  sitting  alone,  the  counsel  for  the  defend 
ant  in  each  case  making  no  request  to  have  a  full  Court — Judge 
Shipman  went  on  to  say,  that  in  consequence  of  Judge  Nelson's 
engagements  in  another  District,  in  September,  and  in  view  of 
his  confinement  with  the  effects  of  a  fall  from  his  carriage, 
which  would  prevent  his  sitting  in  August,  he  (Judge  Nelson) 
could  not  probably  hear  this  case  until  the  October  term.  He 
therefore  ordered  the  trial  to  be  set  down  for  the  third  Monday 
of  October,  at  eleven  o'clock. 

The  prisoners  were  remanded  to  the  custody  of  the  Marshal, 
and  their  manacles,  which  had  been  removed  while  they  were 
in  Court,  being  replaced,  they  were  taken  to  the  Tombs. 


TRIAL 

OF    THE 

OFFICERS  AND    CREW  OF  THE   SCHOONER 
SAVANNAH, 

ON  THE  CHARGE  OF  PIRACY. 


UNITED  STATES  CIRCUIT  COURT, 

SOUTHERN  DISTRICT  OF  NEW  YORK. 

Wednesday,  Oct.  23,  1861. 


THE  UNITED  STATES 
against 

THOMAS  HARRISON  BAKER, 

CHARLES  SYDNEY  PASSALAIGUE, 

JOHN  HARLESTON, 

JOSEPH  CRUSE  DEL  CARNO, 

PATRICK  DALY, 

JOHN  MURPHY, 

MARTIN  GALVIN, 

HENRY  CASHMAN  HOWARD, 

HENRY  OMAN, 

WILLIAM  CHARLES  CLARKE, 

RICHARD  PALMER, 

ALEXANDER  CARTER  COID, 

ALBERT  G.  FERRIS. 


HON.  JUDGES  NELSON  AND  SHIPMAN  PRESIDING. 

Counsel  for  the  United  States  : 

E.  DELAFIELD  SMITH,     WM.  M.  EVARTS,     SAML.  BLATCHFORD, 
ETHAN  ALLEN. 

Counsel  for  the  Defendants : 

BOWDOIN,  LAROCQUES  &  BARLOW,  DANIEL  LORD,  JAMES  T. 
BRADY,  ALGERNON  S.  SULLIVAN,  JOSEPH  H.  DUKES,  ISAAC 
DAVEGA,  MAURICE  MAYER. 


2  TRIAL   OF    THE    OFFICERS   AND   CREW 

K  Delafteld  Smith,  Esq.,  United  States  District  Attorney, 
stated  that  he  desired  to  use  Albert  Gallatin  Ferris,  one  of  the 
prisoners  indicted,  as  a  witness,  and  would  therefore  enter  a 
nolle  prosequi  in  regard  to  him. 

The  Court  :  Are  the  prisoners  to  be  tried  jointly  ? 

Mr.  Lord :  I  believe  so,  sir. 

The  Clerk  called  over  the  names  of  the  prisoners,  directing 
them  to  challenge  the  Jurors  as  called. 

Judge  Nelson  :    Those  of  the  prisoners  who  desire  to  do  so 
may  take  seats  by  the  side  of  their  counsel. 

The  Clerk  proceeded  to  call  the  panel. 

Edward  Werner  called,  and  challenged  for  principal  cause 
by  Mr.  Smith  : 

Q.  Have  you  any  conscientious  scruples  that  would  prevent 
your  finding  a  verdict  of  guilty,  in  a  capital  case,  where  the 
evidence  was  sufficient  to  convince  you  that  the  prisoner  was 
guilty  ?  A.  No,  sir. 

By  Mr.  Larocque,  for  the  prisoners  : 

Q.  Have  you  read  the  account  in  the  newspapers  of  the  cap 
ture  of  the  Savannah  privateers?  A.  Yes,  sir. 

Q.  Have  you  ever  formed  or  expressed  any  opinion  as  to 
the  guilt  or  innocence  of  these  prisoners  ?  A.  No,  sir. 

Q.  Have  you  ever  formed  or  expressed  any  opinion  as  to 
whether  they  were  guilty  of  piracy,  if  the  facts  were  as  alleged  ? 

A.  No,  sir. 

Challenge  withdrawn.     Juror  sworn. 

William  H.  Marshall  called,  and  challenged  for  principal 
cause : 

Q.  Have  you  any  conscientious  scruples  that  would  pre 
vent  your  finding  a  verdict  of  guilty  in  a  capital  case,  where 
the  evidence  was  sufficient  to  convince  you  that  the  prisoner 
was  guilty  ?  A,  No,  sir. 

Sy  Mr.  Larocque,  for  the  prisoners : 

Q.  You  read  the  account  of  the  privateer  Savannah  ? 

A.  I  believe  I  have. 

Q.  Have  you  formed  or  expressed  any  opinion  as  to  the 
guilt  or  innocence  of  the  prisoners  ?  A.  No,  sir. 

Q.  Have  you  ever  formed  or  expressed  any  opinion  as  to 
whether  they  were  guilty  of  piracy,  if  the  facts  were  as  alleged  ? 

A.  I  have  not  formed  any  opinion  as  to  these  men. 

Q.  As  to  the  general  question,  whether  cruising  under  a 
commission  from  the  Confederate  States  is  piracy  ? 

A.  I  do  not  think  I  have  formed  any  opinion,  or  expressed 
one. 

Challenge  withdrawn.    Juror- sworn. 


OF    THE    SCHOONER    SAVANNAH.  3 

William  Powell  called,  and  challenged  for  principal  cause 
by  Mr.  Smith: 

Q.  Have  you  any  conscientious  scruples  that  would  pre 
vent  your  finding  a  verdict  of  guilty,  in  a  capital  case,  where 
the  evidence  was  sufficient  to  convince  you  that  the  prisoner 
was  guilty?  A.  No,  sir. 

By  Mr.  Larocque,  for  the  prisoners : 

Q.  Have  you  formed  or  expressed  any  opinion  as  to  the 
guilt  or  innocence  of  these  prisoners? 

A.  I  have  not  formed  any  opinion  that  would  prevent  me 
from  giving  a  verdict  according  to  the  facts  of  the  case.  I 
have  read  the  account,  and  I  presume  have  formed  such  an 
opinion  as  most  men  do  from  reading  an  account,  if  the  facts 
be  so  and  so. 

Q.  Have  you  formed  any  opinion  as  to  whether  cruising, 
under  a  commission  from  the  Confederate  States,  is  piracy? 

A.  Yes,  sir,  1  have. 

Mr.  Evarts  objected  that  this  was  purely  a  question  of  law, 
and  one  jurors  should  not  be  inquired  of. 

The  Court  sustained  the  objection. 

Q.  Did  you  believe  the  accounts  which  you  read  of  this 
transaction  ? 

A.  Well,  it  is  difficult  to  say.  There  is  so  much  published 
in  the  papers  now-a-days  that  is  not  correct,  that  I  am  hardly 
prepared  to  say  I  believe  anything  I  see,  without  palpable  evi 
dence.  I  believe  the  fact  of  the  capture  of  the  Savannah. 

Q.  Did  you  read  what  had  been  done  by  the  Savannah  be 
fore  she  was  captured  ? 

A.  Well,  I  formed  no  opinion  with  regard  to  that. 

Q.  Did  you  form  an  opinion  of  the  character  of  the  act  with 
which  the  defendants  were  charged  ?  A.  No,  sir. 

Q.  Do  you  entertain  the  settled  opinion  that  acting  under  a 
commission  from  President  Davis,  or  the  Confederate  Govern 
ment,  constitutes  piracy? 

Mr.  Evarts  objected  that  this  was  a  question  of  law. 

The  Court :  I  doubt  whether  that  is  a  question  that  would 
be  proper. 

Mr.  Larocque :  This  is  a  very  peculiar  case,  as  your  honor 
is  well  aware.  It  is  a  case  of  first  impression  in  the  courts  of  the 
United  States.  It  is  a  case  in  which,  probably,  there  will  be  very 
little  difference  between  the  prosecution  and  the  defendants  as  to 
the  mere  facts  which  are  charged  in  this  indictment,  and  it  is  a 
case  in  which  jurors  who  present  themselves  to  be  sworn,  if  they 
have  any  bias  or  prejudice  whatever,  have  it  rather  in  refer 
ence  to  the  character  of  the  acts  than  as  to  the  acts  themselves 
having  been  committed  or  not  having  been  committed.  Now, 
we  all  know,  if  your  honor  please,  that  in  all  criminal  trials  a 


4r  TRIAL   OF   THE   OFFICERS    AND    CREW 

great  deal  of  discussion  has  always  taken  place  with  reference 
to  the  jurisdiction  of  the  jury  over  questions  of  law.  The 
Courts  have  held  that  they  are  bound  to  receive  their  instruc 
tions  on  the  law  from  the  Court ;  but,  at  the  same  time,  if  they 
do  not  act  in  pursuance  of  the  instructions  which  they  receive, 
it  is  a  matter  between  them  and  their  own  consciences,  and  it 
is  a  matter  which  no  form  of  review  in  these  Courts  will  reach. 
Now,  one  of  my  associates  has  handed  to  me  an  authority  upon 
this  subject  from  1st  Baldwin's  Reports — that  on  the  trial  of 
Handy,  in  1832,  for  treason,  Judge  Grier  held  that  a  juror  who 
had  formed  an  opinion  that  the  riots  in  question  did  not  amount 
to  treason,  was  incompetent ;  and,  in  the  case  of  the  United 
States  v.  Wilson,  it  was  held  that  a  juror  was  incompetent  who 
stated,  on  being  challenged,  that  he  had  read  the  newspaper 
account  of  the  facts  at  the  time,  and  had  come  to  his  own  con 
clusion,  and  had  made  up  his  mind  that  the  offence  was  trea 
son,  although  he  had  not  expressed  that  opinion,  nor  formed  or 
expressed  an  opinion  that  the  defendant  was  or  was  not  engaged 
in  the  offence.  It  seems  to  me  that  these  authorities  cover 
precisely  the  case  before  the  Court,  the  only  difference  being 
that  this  is  a  charge  of  piracy,  and  the  other  a  charge  of  treason. 

Judge  Nelson :  The  only  difference  is  that  there  the  question 
was  put  to  the  juror  as  to  the  crime,  after  it  appeared  lie  had 
read  the  account  of  the  transaction,  which  involved  both  the 
law  and  the  facts — involved  the  whole  case  ;  but  as  we  under 
stand  your  question,  you  put  a  pure  question  of  law,  which  we 
do  not  think  belongs  to  the  juror. 

Mr.  Larocque :  I  understand  your  honor  to  rule  the  question 
is  not  admissible. 

Judge  Nelson :  Yes. 

Defendants'  Counsel  took  exception. 

Mr.  Larocque :  Permit  me  to  put  the  question  in  two  forms. 

Q.  Have  you  formed  or  expressed  the  opinion  that  the  acts 
charged,  if  proved,  constitute  the  offence  of  piracy  ? 

The  Court:  That  question  is  admissible. 

A.  I  have  not  expressed  the  opinion,  and  I  can  hardly  say 
I  have  formed  an  opinion,  because  I  am  not  sufficiently  in 
formed  on  the  law  to  do  so. 

Challenge  withdrawn.     Juror  sworn. 

The  Court :  Then  the  other  form  of  the  question  is  with 
drawn  ? 

Mr.  Larocque:  Yes,  sir  ;  we  are  satisfied  with  the  form  of 
the  question  the  Court  allows  us  to  put. 

James  Cassidy  called.  Challenged  for  principal  cause,  by 
Mr.  Larocque,  for  the  defendants. 

Q.  Did  you  read  the  account  of  the  capture  of  the  Savan 
nah  privateer  ?  A.  I  believe  I  did. 


OF   TIIE    SCHOONER    SAVANNAH.  5 

Q.  Have  you  formed  or  expressed  any  opinion  upon  the 
guilt  or  innocence  of  these  prisoners  ? 

A.  I  believe  not,  sir.  I  may  have  made  some  mention  of  it 
at  the  time  of  reading  the  transaction,  but  not  to  express  any 
opinion. 

Q.  Have  you  formed  or  expressed  an  opinion  whether  the 
facts,  if  proved,  constitute  the  offence  of  piracy  ?  A.  No,  sir. 

By  Mr.  Smith  : 

Q.  Have  you  any  conscientious  scruples  on  the  subject  of 
capital  punishment  that  would  interfere  with  your  rendering 
a  verdict  of  guilty,  if  the  evidence  proved  the  prisoners  to  be 
guilty?  A.  No,  sir. 

Challenge  withdrawn.     Juror  sworn. 

Joel  W.  Poor  called.  Challenged  for  principal  cause  by 
Mr.  Smith: 

Q.  Have  you  any  opinion  on  the  subject  of  capital  punish 
ment  which  would  prevent  your  rendering  a  verdict  of  guilty, 
if  the  evidence  was  such  as  to  satisfy  you?  A.  No,  sir. 

By  Mr.  Larocque,  for  the  prisoners : 

Q.  Have  you  read  the  account  of  the  capture  of  the  Savan 
nah  privateers  ?  A.  I  have. 

Q.  Have  you  formed  or  expressed  any  opinion  as  to  the 
guilt  or  innocence  of  the  prisoners  ?  A.  I  think  not,  sir. 

Q.  Have  you  formed  or  expressed  any  opinion  whether 
the  facts  charged,  if  proved,  constitute  the  offence  of  piracy  ? 

A.  I  have  not. 

>.  Have  you  never  conversed  on  this  subject? 
..  I  do  not  think  I  have. 

Q.  Have  you  no  recollection  of  having  conversed  upon  it 
at  all  ? 

A.  I  may  have  talked  about  it  something  at  the  time,  but 
I  do  not  recollect. 

Q.  Are  you  a  stockholder,  or  connected  with  any  marine 
insurance  company  ?  A.  No,  sir. 

Q.  Have  you  been  engaged  in  Northern  trade  ?    A.  No,  sir. 

Challenged  peremptorily ,  by  prisoners. 

Thomas  Duqan  called.  Challenged  fur  principal  cause,  by 
Mr.  Smith  : 

Q.  Have  you  any  conscientious  scruples  that  would  inter 
fere  with  your  rendering  a  verdict  of  guilty,  if  you  deemed  the 
prisoners  guilty  upon  the  evidence  ? 

A.  I  have  strong  conscientious  scruples. 

Mr.  Smith  asked  that  the  juror  stand  aside. 

Defendants'  Counsel  objected  to  the  question,  as  not  proper 
in  form.  Objection  sustained. 


D  TRIAL    OF   THE    OFFICERS    AND    CREW 

Q.  In  a  capital  case,  where  the  evidence  is  sufficient 
to  satisfy  your  mind  of  the  prisoner's  guilt,  have  you  any  con 
scientious  scruples  that  would  prevent  your  finding  a  verdict 
of  guilty  ? 

A.  If  I  may  explain,  I  would  endeavor  to  find  a  verdict ; 
but  I  believe  my  sympathy  would  control  my  judgment  to 
that  extent  that  I  would  not  be  able  to  do  my  duty  between 
the  people  and  the  prisoner.  I  have  been  on  a  jury  before, 
and  I  doubt  that  my  judgment  would  be  controlled  by  my 
sympathy. 

Mr.  Larocque :  The  witness  has  not  said  his  sympathies 
would  be  of  that  strength  that  would  prevent  his  finding  a  ver 
dict  of  guilty,  if  the  evidence  was  satisfactory.  A  juror  that 
has  doubts  of  himself  is  the  most  honest  and  reliable,  according 
to  all  experience  in  criminal  trials. 

The  Court :  Examine  him  on  that  point. 

By  Mr.  Larooque : 

Q.  Suppose  that  upon  this  trial  the  facts  charged  in  this 
indictment  were  proved  by  clear  and  satisfactory  evidence,  and 
the  Court  should  instruct  you,  upon  that  evidence,  that  those 
facts  constitute  the  offence  of  piracy,  would  your  conscientious 
scruples  be  so  strong  as  to  prevent  your  finding  a  verdict  of 
guilty  in  such  a  case  as  that  ? 

A.  There  must  be  not  a  shadow  of  doubt.  It  must  be 
strong  and  conclusive  in  my  mind  before  a  verdict  is  rendered. 

Q.  But  where  there  was  strong,  conclusive  evidence,  you 
would  render  a  verdict  of  guilty  ?  A.  Yes,  sir. 

Mr.  Evarts  :  It  is  pretty  apparent  that  the  juror  does  not 
regard  himself  as  in  a  position  to  deal  impartially  with  this 
question,  which  involves  human  life.  The  intention  of  this 
cause  of  challenge  is,  that  the  juror  should  be  in  a  position  to 
yield  to  the  evidence  that  just  assent  which  its  character  is  en 
titled  to  call  for,  unimpeded  by  his  repugnance  to  the  result 
when  fatal  to  human  life.  Still,  if  your  honor  should  not  think 
that  upon  this  ground  he  ought  to  be  excluded  absolutely,  cer 
tainly  it  would  be  consistent  with  the  course  of  practice,  and 
with  the  just  feeling  of  the  juror,  that  he  should  stand  aside 
until  the  panel  be  made  up. 

Mr.  Brady  :  That  practice  I  understand  not  to  prevail  any 
longer,  since  it  has  been  provided  that  the  empanneling  of  jurors 
in  the  United  States  Courts  shall  be  the  same  as  in  the  State 
Courts,  and  we  do  not  consent  to  any  such  principle  as  the 
gentleman  proposes.  Your  honor  has  decided  that  a  juror,  to 
disqualify  him  from  serving  in  a  capital  case,  must  say  that  his 
conscientious  scruples  are  of  such  a  character  that,  though  the 
evidence  be  clear  and  conclusive  under  the  law,  as  stated  by 
the  Court,  they  would  prevent  his  doing  his  duty  and  giving  a 
verdict  of  guilty.  To  my  mind,  nothing  can  be  more  clear  and 


OF   THE    SCHOONER    SAVANNAH.  ( 

satisfactory  than  the  statement  of  the  juror  himself,  which  ex 
hibits  a  state  of  mind  that  should  be  possessed  by  every  juror ; 
that  is,  that  he  must  be  satisfied  beyond  all  reasonable  doubt 
of  the  guilt  of  the  accused  before  rendering  a  verdict  of  guilty  ; 
and  when  be  speaks  of  his  sympathy  on  behalf  of  human  life, 
it  is  only  that  sympathy  which  the  law  recognizes  where  it 
gives  the  prisoner  the  benefit  of  every  doubt.  It  is  true  he 
does  use  the  expression  that  there  must  not  be  the  shadow  of  a 
doubt ;  but  when  the  Court  comes  to  expound  the  law,  he  will 
be  instructed  that  it  must  be  a  reasonable  doubt.  1  do  not  see 
anything  against  the  juror  on  the  ground  of  conscientious 
scruples.  Your  honor  knows  that  the  prosecution  have  no  per 
emptory  challenge  in  cases  of  piracy  or  treason,  and  the  old 
practice  of  setting  aside  jurors  until  the  panel  is  exhausted,  and 
then,  if  not  able  to  make  up  twelve  without  the  rejected  jurors, 
requiring  their  acceptance,  has  passed.  That  is  decided  in  the 
case  of  Shackleford,  in  18  Howard's  Reports. 

The  Court  (to  the  Juror) :  We  do  not  exactly  comprehend 
the  views  you  entertain  upon  this  question ;  therefore  we 
desire,  for  our  own  satisfaction,  to  put  some  questions  to  you,  to 
ascertain,  if  we  can,  the  state  of  your  mind  and  opinions  upon 
these  questions,  and  see  whether  you  are  a  competent  juryman 
or  not  in  a  capital  case.  It  is  a  very  high  duty,  and  a  common 
duty,  devolving  upon  every  respectable  citizen.  The  question 
is  this — and  we  desire  that  there  may  be  no  delusion  or  misap 
prehension  on  your  mind  in  respect  to  it — in  a  capital  case,  if 
the  proof  on  behalf  of  the  Government  should  be  such  as  to 
satisfy  your  mind  that  the  prisoner  was  guilty  of  the  capital 
offence,  whether  or  not  you  have  any  conscientious  scruples 
as  respects  capital  punishment,  that  would  prevent  your  ren 
dering  a  verdict  of  guilty? 

A.  In  answer  to  that  I  would  say  that  this  is  what  troubles 
me :  I  want  to  do  my  duty ;  I  want  to  render  a  verdict  fairly 
and  squarely  as  between  the  prisoner  and  the  people ;  but  I 
have  this  to  contend  with — I  have  read  that  people  have  been 
convicted  upon  the  clearest  testimony,  and  afterwards  found  to 
be  innocent ;  and  before  I  would  have  such  feelings  I  would  as 
soon  go  to  the  scaffold  as  send  a  person  there  who  was  not 
guilty.  Therefore  my  sympathy  is  so  strong  that  I  am  afraid 
to  trust  myself.  I  did  serve  on  a  former  occasion,  and  I  do  not 
know  that  even  then  I  did  my  duty. 

Q.  What  do  you  mean  by  being  afraid  to  trust  yourself?  Is  it 
a  conscientious  feeling  and  opinion  against  the  penalty  of 
capital  punishment  ? 

A.  Yes,  sir,  it  is.  I  have  a  great  abhorrence  of  it,  if  I  may 
so  express  myself.  Yet  I  would  like  to  render  a  verdict,  and 


9-  TRIAL    OF    THE    OFFICERS    AND    CKEW 

do-  what  is  right ;  but  I  believe  my  feelings  are  too  great  to 
trust  myself. 

The  Court :  We  think  we  are  bound  to  set  the  j  uror  aside. 

Mr.  Larocque :  Permit  me  to  put  one  question. 

Q.  It  strikes  me  that  you  are  a  little  at  fault  as  to  what  the 
purport  of  this  question  is.  It  is  not  whether  you  have  an  ab 
horrence  of  convicting  a  prisoner  of  a  capital  offence.  The 
question  is,  whether  you  have  such  conscientious  scruples 
against  capital  punishment  as  would  prevent  your  finding  the 
prisoner  guilty,  if  the  facts  were  proved,  and  the  Court  in 
structed  you  that  tbose  facts  constituted  the  offence  ? 

A.  I  answered  before.  It  places  me  in  rather  a  peculiar 
position.  As  I  said,  I  want  it  understood  distinctly,  I  desire 
to  do  my  duty  ;  but  there  is  a  struggle  between  that  and  my 
sympathy,  and  I  am  afraid  to  trust  myself. 

Q.  But  you  can  draw  a  distinction  between  your  sympathy 
and  any  conscientious  scruples  against  the  punishment  of 
death,  can  you  not  ? 

A.  Well,  sir,  where  it  comes  to  the  point — 

Q.  Allow  me  to  put  the  question  in  another  way:  If  you 
are  entirely  satisfied,  upon  the  evidence  and  instructions  of  the 
Court,  that  the  prisoner  was  guilty,  your  conscience  would  not 
trouble  you  in  finding  him  guilty  ? 

A.  Well,  sir,  there  would  be  this :  I  would  feel  that  persons, 
under  the  strongest  kind  of  testimony,  have  been  found  guilty, 
wrongfully,  and  it  would  operate  on  me — the  fear  that  I  had 
judged  wrong  on  the  facts,  and  committed  murder.  That  feel 
ing  is  very  strong. 

Q.  If  the  evidence  satisfied  you  that  the  prisoner  was 
guilty,  would  your  conscience  prevent  your  saying  so? 

A.  It  would  not  now.  It  might  in  the  jury-room.  When 
it  comes  to  the  point,  and  I  feel  that  I  hold  the  life  of  a  human 
being,  it  is  pretty  hard  to  know  what  I  would  do  then. 

Q.  Your  conscience  would  only  trouble  you  if  you  doubted 
that  your  judgment  was  ri^ht?  A.  Yes,  sir. 

Mr.  Larocque :  I  submit  that  the  juror  is  competent. 

Juror:  You  must  take  your  chances  if  you  take  me.  I  still 
think  I  am  not  fit  to  sit  on  a  jury  to  represent  the  people. 

The  Court:  I  think  we  must  take  the  opinion  of  me  juror 
as  against  himself. 

Set  aside.     [Defendants  took  exception.] 

John  Fife  called,  and  challenged  for  principal  cause : 
Q.  In  a  capital  case,  where  the  evidence  is  sufficient  to  con 
vince  you  of  the   guilt  of  the  prisoner,  have  you  any  con 
scientious  scruples  that  would  prevent  your  finding  a  verdict  ol 
guilty?     A.  No,  sir. 


OF   THE   SCHOONER   SAVANNAH.  9 

By  Mr.  Larocque,  for  the  prisoners  : 

Q.  Did  you  read  the  account  of  the  capture  of  the  privateer 
Savannah  ?  A.  I  did. 

Q.  Have  you  formed  or  expressed  an  opinion  as  to  the 
guilt  or  innocence  of  the  prisoners  ? 

A.  I  believe  not,  sir. 

Q.  Have  you  formed  or  expressed  an  opinion  whether  the 
facts  charged,  if  proved,  constitute  the  offence  of  piracy  ? 

A.  I  have  not,  sir. 

Q.  You  think  you  have  no  bias  or  prejudice  in  this  case  ? 

A.  No,  sir. 

Challenge  withdrawn.     Juror  sworn. 

Thomas  Costello  called.     Challenged  for  principal  cause. 

By  Mr.  Smith : 

Q.  In  a  capital  case,  where  the  evidence  is  sufficient  to  con 
vince  you  of  the  guilt  of  the  prisoner,  have  you  any  conscien 
tious  scruples  that  would  prevent  your  finding  a  verdict  of 
guilty  ?  A.  No,  sir. 

By  Mr  Larocque,  for  the  prisoners : 

Q.  You  know  that  this  case  is  an  indictment  for  piracy 
against  the  prisoners.  Have  you  formed  or  expressed  any 
opinion  upon  their  guilt  or  innocence  ?  A.  No,  sir. 

Q.  Have  you  formed  or  expressed  any  opinion  whether  the 
facts  charged  against  them,  if  proved,  constitute  the  offence  of 
piracy  ?      A.  I  have  not,  sir. 
,    Challenge  withdrawn.     Juror  sworn. 

Tuganhold  Kron  called.     Challenged  for  principal  cause. 

By  Mr.  Smith : 

Q.  In  a  capital  case,  where  the  evidence  was  sufficient  to 
convince  you  of  the  guilt  of  the  prisoner,  have  you  any  con 
scientious  scruples  that  would  prevent  your  finding  a  verdict 
of  guilty  ? 

A.  Yes,  sir.     (Question  repeated.)     A.  No,  sir. 

Q.  Do  you  readily  understand  English  ?     A.  Pretty  well. 

^.  You  did  not  understand  me  when  I  asked  the  question 
the  hrst  time?  A.  No,  sir. 

Q.  Do  you  understand  English  well? 

A.  Yes,  pretty  well.  There  may  be  some  words  I  do  not 
understand. 

Q.  Did  you  ever  sit  as  a  juror  on  a  trial?     A.  Yes,  sir. 

Q.  Did  you  understand  all  the  witnesses  said  ? 

A.  No,  because  I  did  not  hear,  sometimes. 

Q.  Do  you  think  you  understand  English  well  enough,  so 
that  you  can  hear  a  trial  intelligently  ? 

A.  I  cannot  say,  sir. 


10  TRIAL    OF   THE   OFFICERS    AND    CREW 

>.  You  are  not  sure  ?    A.  No,  sir. 
Mr.  Larocque : 

Q.  What  is  your  occupation?     A.  A  bookbinder. 

Q.  Have  you  an  establishment  of  your  own?    A.  Yes,  sir. 

Q.  The  men  you  employ — do  they  speak  English  or 
German  ? 

A.  Some  English — the  most  of  them  German. 

Q.  And  you  transact  your  business  with  gentlemen  who 
speak  English?  A.  Yes,  sir. 

Q.  How  long  have  you  done  so?     A.  Eight  years. 

By  the  Court : 

Q.  How  long  have  you  been  in  this  country  ? 

A.  Seventeen  years. 

Q.  Have  you  been  in  business  all  that  time  ? 

A.  I  worked  as  journeyman  ten  years,  and  have  been  seven 
years  in  business  of  my  own. 

By  Mr.  Smith  : 

Q.  Do  you  think  you  can  understand  English  well  enough  so 
that  you  can,  from  the  evidence,  form  an  opinion  of  your  own? 

A.  I  think  I  will. 

By  Mr.  Larocque : 

Q.  You  read  the  account  of  the  capture  of  the  privateer 
Savannah  in  the  newspapers? 

A.  Yes,  sir;  in  some  German  paper. 

Q.  Did  you  form  or  express  any  opinion  as  to  the  guilt  or 
innocence  of  these  prisoners?  A.  No,  sir. 

Q.  Did  you  form  or  express  an  opinion  whether  the  facts 
charged  against  them,  if  proved,  constitute  the  offence  of 
piracy  ?  A.  No,  sir. 

Mr.  Evarts :  We  think  the  juror's  knowledge  of  the 
language  is  shown,  by  his  own  examination,  to  be  such  as 
should  at  least  entitle  the  Government  to  ask  that  he  should 
stand  aside  until  it  is  seen  if  the  panel  shall  be  iilled  from  other 
jurors — if  that  right  exists.  Your  honor  held,  in  the  case  of 
the  United  States  v.  Douglass — a  piracy  case  tried  some  ten 
years  ago — that  that  right  did  exist. 

The  Court:  I  think  we  have  since  qualified  that  in  the  case 
of  Shackleford.  It  was  intended  to  settle  that  debatable  ques 
tion,  and  it  was  held  that  the  Act  of  Congress,  requiring  the 
empanneling  of  jurors  to  be  according  to  the  practice  in  State 
Courts,  did  not  necessarily  draw  after  it  this  right  of  setting 
aside.  We  think  the  objection  taken  is  not  sustained. 

Juror  sworn. 

Matthew  P.  Bogart  called.  Challenged  for  principal  cause 
by  Mr.  Smith  : 

Q.  In  a  capital  case,  where  the  evidence  is  sufficient  to  con- 


OF   THE    SCHOONER    SAVANNAH.  11 

vinceyou  of  the  guilt  of  the  prisoner,  have  you  any  conscien 
tious  scruples  that  would  prevent  your  rendering  a  verdict  of 
guilty?  A.  No,  sir. 

By  Mr.  Larocque,  for  the  prisoners : 

Q.  Have  you  read  the  account  of  the  capture  of  the  priva 
teer  Savannah  in  the  newspapers? 

A.  I  recollect  reading  it  at  the  time — not  since. 

Q.  Have  you  ever  formed  or  expressed  an  opinion  upon  the 
guilt  or  innocence  of  these  prisoners  ? 

A.  Not  to  my  recollection. 

Q.  Have  you  ever  formed  or  expressed  an  opinion  whether 
the  facts  charged  against  them,  if  proved,  constitute  the  offence 
of  piracy  ?  A.  I.  have  not. 

Challenge  withdrawn.     Juror  sworn. 

George  MoelUr  called.  Challenged  for  principal  cause  by 
Mr.  Smith : 

Q.  In  a  capital  case,  where  the  evidence  is  sufficient  to 
convince  you  of  the  guilt  of  the  prisoner,  have  you  any  con 
scientious  scruples  that  would  prevent  your  finding  a  verdict 
of  guilty?  A.  No,  sir. 

By  Mr.  Larocque,  for  the  prisoners : 

Q.  Have  you  read  the  account  of  the  capture  of  the  Savan 
nah  ?  A.  Yes,  sir. 

Q.  Have  you  formed  or  expressed  any  opinion  as  to  the 
guilt  or  innocence  of  these  prisoners?  A.  No,  sir. 

Q.  Have  you  formed  or  expressed  any  opinion  as  to  whether, 
if  the  facts  were  proved,  as  alleged,  it  was  piracy  ? 

A.  I  do  not  know  what  the  facts  are,  sir.  I  have  only  read 
an  account  of  the  capture. 

Challenge  withdrawn.   Juror  sworn. 

Robert  Taylor  called.  Challenged  for  principal  cause,  by 
Mr.  Smith : 

Q.  In  a  capital  case,  where  the  evidence  is  sufficient  to  con 
vince  you  of  the  guilt  of  the  prisoner,  have  you  any  conscien 
tious  scruples  that  would  prevent  your  finding  a  verdict  of 
guilty  ?  A.  No,  sir. 

By  Mr.  Larocque,  for  the  prisoners : 

Q.  You  read  of  the  capture  of  the  privateer  Savannah  ? 

A.  I  think  I  have. 

Q.  Did  you  form  or  express  any  opinion  as  to  the  guilt  or 
innocence  of  the  prisoners?  A.  Not  that  I  know  of,  sir. 

Q.  Have  you  furmed  or  expressed  any  opinion  whether  the 
facts,  if  proved,  constitute  the  offence  of  piracy  ? 

A.  No,  sir,  not  any. 

Challenge  withdrawn.     Juror  sworn. 


12  TRIAL    OF   THE   OFFICERS   AND    CREW 

Daniel  Bixty  called.  Challenged  for  principal  clause,  by 
Mr.  Smith: 

Q.  In  a  capital  case,  where  the  evidence  is  sufficient  to 
convince  you  of  the  guilt  of  the  prisoner,  have  you  any  con 
scientious  scruples  that  would  prevent  your  finding  a  verdict 
of  guilty  ?  A.  I  have  not. 

By  Mr.  Larocque : 

Q.  Have  you  ever  formed  or  expressed  any  opinion  as  to 
the  guilt  or  innocence  of  the  prisoners?  A.  I  have  not. 

Q.  Or  whether  the  facts,  if  proved,  constitute  the  offence  of 
piracy  ?  A.  No,  sir. 

Challenge  withdrawn.     Juror  sworn. 

Ira  L.  Cady  called.  Challenged  for  principal  cause,  by  Mr. 
Smith : 

Q.  In  a  capital  case,  where  the  evidence  is  sufficient  to 
convince  you  of  the  guilt  of  the  prisoner,  have  you  any  con 
scientious  scruples  that  would  prevent  your  finding  a  verdict 
of  guilty  ?  A.  No,  sir. 

By  Mr.  Larocque : 

Q.  You  know  what  this  case  is  for  ? 

A.  I  believe  I  understand  it. 

Q.  An  indictment  of  piracy  against  the  privateersmen  cap 
tured  on  the  Savannah  ?  A.  Yes,  sir. 

Q.  Have  you  formed  or  expressed  any  opinion  upon  the 
guilt  or  innocence  of  the  prisoners  ? 

A.  I  do  not  recollect  that  I  have. 

Q.  Have  you  formed  or  expressed  any  opinion  whether  the 
facts,  if  proved,  constitute  piracy?  A.  I  do  not  think  I  have. 

Q.  Have  you  any  opinion  now  upon  either  of  these  subjects  ? 

A.  I  cannot  say  that  I  am  entirely  indifferent  of  opinion  on 
the  subject,  but  still  I  have  not  formed  any  definite  opinion. 

Q.  Your  mind,  however,  is  not  entirely  unbiased  upon  the 
question  ? 

A.  Well,  no,  sir — not  if  I  understand  the  question  ;  that  is, 
the  question  whether  the  facts,  if  proved,  constitute  the  offence 
of  piracy? 

Mr.  Larocque  submitted  that  the  juror  was  not  indifferent. 

Mr.  Evarts  :  All  that  has  been  said  by  the  j  uror  is  that,  on 
the  question  of  whether  the  facts  charged  constitute  the  offence 
of  piracy,  he  has  no  fixed  opinion ;  but  he  cannot  say  he  has  no 
opinion  on  the  subject.  He  is  ready  to  receive  instruction  from 
the  Court. 

Mr.  Larocque  con  tended  that,  as  the  question  of  whether  the 
facts  alleged  constituted  piracy,  or  not,  was  a  most  important 
one  to  be  discussed,  they  were  entitled  to  have  the  mind  of  the 
juror  entirely  blank  and  unbiased  on  that  subject. 


OF    THE    SCHOONER  SAVANNAH.  13 

The  Court:  Let  us  see  what  the  state  of  mind  of  the 
jnror  is. 

Q.  You  mentioned,  in  response  to  a  question  put  to  you, 
that  you  had  read  an  account  in  the  newspapers  of  the  capture 
of  this  vessel. 

A.  I  was  not  asked  that  question.  I  have  no  mind  made 
up  in  respect  to  the  subject  that  would  prevent  my  finding  a 
verdict  in  accordance  with  the  evidence;  but  I  said  I  was  not 
entirely  devoid  of  an  opinion  in  regard  to  the  case — that  is,  the 
offence. 

Q.  Have  you  read  an  account  of  the  capture  of  this  vessel? 

A.  Yes,  sir  ;  1  read  it  at  the  time. 

Q.  Is  it  from  the  account,  thus  read,  of  the  transaction  of 
the  capture,  that  you  found  this  opinion  upon  ? 

A.  No,  sir  ;  it  is  not  that.  It  is  upon  the  general  subject 
that  I  mean  to  be  understood — not  in  reference  to  this  case  par 
ticularly. 

Q.  Do  you  say,  upon  the  general  question,  that  you  have  an 
opinion? 

A.  Well,  not  fully  made  up.  I  have  the  shadow  of  an  opin 
ion  about  it. 

Q.  Not  a  fixed  opinion  ? 

A.  No,  sir;  I  would  be  governed  by  the  law  and  in 
structions  of  the  Court. 

Q.  You  are  open  to  the  control  of  your  opinion  upon  the 
facts  and  law  as  developed  in  the  course  of  the  trial  ? 

A.  Certainly,  sir. 

The  Court :  We  do  not  think  the  objection  sustained. 

Challenged  peremptorily  by  the  prisoners. 

Samuel  Mudget  called.    Challenged  for  principal  cause. 

£y  Mr.  Smith: 

Q.  In  a  capital  case,  where  the  evidence  is  sufficient,  in 
your  opinion,  to  convict  the  prisoner,  have  you  any  conscien 
tious  scruples  that  would  prevent  your  finding  a  verdict  of 
guilty?  A.  I  have  not. 

By  Mr.  Larocque : 

Q.  You  have  read  the  account  of  the  capture  of  the  privateer 
Savannah  ?  A.  Yes,  sir ;  at  the  time. 

Q.  Have  you  formed  or  expressed  any  opinion  upon  the 
guilt  or  innocence  of  these  privateersmen  ?  A.  I  have  not. 

Q.  Have  you  formed  or  expressed  an  opinion  whether  the 
acts  charged  upon  them,  if  proved,  constitute  piracy  ? 

A.  No,  sir ;  I  have  not  formed  any  opinion  with  regard  to 
the  question  whether  it  was  piracy  or  not. 

Challenged  peremptorily  by  the  prisoners. 


14  TRIAL    OF   THE   OFFICERS    AND   CREW 

George  H.Hansell  challenged  for  principal  cause. 

Q.  In  a  capital  case,  where  the  evidence  is  sufficient  to 
convince  you  that  the  prisoner  was  guilty,  have  you  any  con 
scientious  scruples  that  would  prevent  your  finding  a  verdict 
of  guilty  ? 

A.  Ho,  sir. 

By  Mr.  Larocque : 

Q.  Have  you  read  the  account  of  the  capture  of  the  Savan 
nah  privateer  ? 

A.  I  believe  I  read  the  account  at  the  time.  I  have  a  very 
indistinct  recollection  of  it. 

Q.  Have  you  formed  or  expressed  an  opinion  as  to  the  guilt 
or  innocence  of  the  prisoners? 

A.  I  do  not  remember  that  I  have,  sir.  I  certainly  do  not 
have  any  opinion  now;  and  certainly  would  not  have  until  I 
have  heard  the  evidence. 

Q.  Do  you  say  you  do  not  recollect  whether  you  have 
formed  or  expressed  any  opinion  ? 

A.  I  do  not  remember  that  I  have,  sir.  I  may,  on  reading 
the  article,  have  expressed  an  opinion  on  it ;  but  lam  not  posi 
tive  of  that. 

Q.  Have  you  formed  or  expressed  an  opinion  whether  the 
facts  charged,  if  proved,  amount  to  piracy? 

A.  I  should  not  consider  myself  competent  to  form  an  opin 
ion  upon  that  until  I  have  heard  the  law  on  the  subject. 

Challenge  withdrawn.     Juror  sworn. 

Panel  completed. 

DISTRICT  ATTOEISTEY'S  OPENING. 

MR.  E.  DELAFIELD  SMITH  opened  the  case  for  the  prosecution. 
He  said : 

May  it  please  the  Court,  and  you,  Gentlemen  of  the  Jury  : 

The  Constitution  of  the  United  States,  in  the  eighth  section 
of  the  first  article,  authorized  the  Congress^  among  other  things, 
to  define  and  punish  piracies  and  felonies  committed  on  the 
high  seas,  and  offences  against  the  law  of  nations. 

In  pursuance  of  that  authority,  the  Congress,  on  the  30th  of 
April,  1790,  made  provisions  contained  in  an  act  entitled  "  An 
Act  for  the  punishment  of  certain  crimes  against  the  United 
States."  I  refer  to  the  8th  and  9th  sections  of  that  act,  which 
is  to  be  found  in  the  first  volume  of  the  IT.  S.  Statutes  at  Large, 
page  112. 

In  the  State  Courts,  gentlemen,  it  is  common  to  say  that  the 
jury  is  judge  both  of  the  law  and  the  fact;  but  such  is  not 
the  case  in  the  United  States  Courts.  The  Court  will  state  to 


OF  THE   SCHOONER   SAVANNAH.  15 

you  the  law,  which  you  are  morally  bound  to  follow.  But  in 
opening  this  case,  I  refer  to  the  statutes  for  the  purpose  of 
showing  you  precisely  what  the  law  is  supposed  to  be  under 
which  this  indictment  is  found,  and  under  which  we  shall  ask 
you  for  a  verdict. 

The  8th  section  of  the  act  of  1790,  commonly  called  "  The 
Crimes  Act,"  and  to  which  I  have  just  referred,  declares,  that 
if  any  person  or  persons  shall  commit,  upon  the  high  seas,  or 
in  any  river,  haven,  basin,  or  bay,  out  of  the  jurisdiction  of  any 
particular  State,  murder  or  robbery,  or  any  other  offence  which, 
if  committed  within  the  body  of  a  county,  would,  by  the  laws 
of  the  United  States,  be  punishable  with  death  ;  or  if  any  cap 
tain  or  mariner  of  any  ship  or  other  vessel  shall  piratically  and 
feloniously  run  away  with  such  ship  or  vessel,  or  any  goods  or 
merchandize  to  the  value  of  fifty  dollars,  or  yield  up  such  ship 
•or  vessel  voluntarily  to  any  pirate  ;  or  if  any  seaman  shall  lay 
violent  hands  upon  his  commander,  thereby  to  hinder  and  pre 
vent  his  fighting  in  defence  of  his  ship  or  goods  committed  to 
his  trust,  or  shall  make  a  revolt  in  the  ship ;  every  such  offender 
shall  be  deemed,  taken,  and  adjudged  to  be  a  pirate  and  felon, 
and,  being  thereof  convicted,  shall  suffer  death ;  and  the  trial 
of  crimes  committed  on  the  high  seas,  or  in  any  place  out  of 
the  jurisdiction  of  any  particular  State,  shall  be  in  the  district 
where  the  offender  is  apprehended,  or  into  which  he  may  first 
be  brought. 

The  9th  section  of  the  same  act  provides,  that  if  any  citizen 
shall  commit  any  piracy  or  robbery  aforesaid,  or  any  act  of 
hostility  against  the  United  States,  or  any  citizen  thereof,  upon 
the  high  sea,  under  color  of  any  commission  from  any  foreign 
prince  or  state,  or  on  pretence  of  authority  from  any  person, 
such  offender  shall,  notwithstanding  the  pretence  of  any  such 
authority,  be  deemed,  adjudged,  and  taken  to  be  a  pirate,  felon, 
and  robber,  and,  on  being  thereof  convicted,  shall  suffer  death. 
A  statute,  on  this  subject,  enacted  in  1819,  expired  by  its 
own  limitation  ;  but  on  the  15th  of  May,  1820,  an  act  was  passed 
making  further  provisions  for  punishing  the  crime  of  piracy. 
This  law  is  printed  in  the  third  volume  of  the  U.  S.  Statutes  at 
Large,  page  600.  The  3d  section  provides,  that  if  any  person 
shall,  upon  the  high  seas,  or  in  any  open  roadstead,  or  in  any 
haven,  basin,  or  bay,  or  in  any  river  where  the  sea  ebbs  and 
flows,  commit  the  crime  of  robbery  in  or  upon  any  ship  or 
vessel,  or  upon  any  of  the  ship's  company  of  any  ship  or  vessel, 
or  the  lading  thereof,  such  person  shall  be  adjudged  to  be  a 
pirate ;  and,  being  thereof  convicted  before  the  Circuit  Court 
of  the  United  States  for  the  district  into  which  he  shall  be 
brought,  or  in  which  he  shall  be  found,  shall  suffer  death. 

I  now  refer  to  the  act  of  March  3d,  1825,  to  be  found  in  the 


16  TRIAL   OF   THE   OFFICERS   AND   CREW 

4th  volume  of  the  Statutes  at  Large,  page  115.  It  is  entitled, 
"  An  act  more  effectually  to  provide  for  the  punishment  of  certain 
crimes  against  the  United  States,  and  for  other  purposes."  I 
cite  it  simply  on  the  question  of  jurisdiction.  The  14th  section 
provides,  that  the  trial  of  all  offences  which  shall  be  committed 
upon  the  high  seas  or  elsewhere,  out  of  the  limits  of  any  State 
or  district,  shall  be  in  the  district  where  the  offender  is  appre 
hended,  or  into  which  he  may  be  tirst  brought.  The  twenty- 
fifth  section  of  this  act  repeals  all  acts,  or  parts  of  acts,  incon 
sistent  therewith. 

Under  the  act  of  1790  a  question  of  construction  arose,  in 
the  Supreme  Court  of  the  United  States,  as  to  whether  robbery 
on  the  high  seas  was  punishable  with  death.  It  was  settled 
(3  Wheaton,  610)  that  the  statute  did  punish  robbery  with  death 
if  committed  on  the  high  seas,  even  though  robbery  on  land 
might  not  incur  that  extreme  penalty.  I  refer  to  the  United 
States  v.  Palmer,  3  Wheaton,  610 ;  the  United  States  v.  Jones, 
3  Washington's  Circuit  Court  Reports,  209 ;  United  States  v* 
Howard,  Id.,  340  ;  2  Whar.  Crim.  Law,  fifth  ed.,  p.  543. 

I  have  been  thus  particular  in  referring  to  the  laws  under 
which  this  indictment  is  framed,  in  order  that  you  may  per 
ceive  precisely  the  inquiry  which  we  now  have  to  make.  It 
is,  whether  the  statutory  law  of  the  United  States  has  or  has 
not  been  violated  ?  You  have  all,  undoubtedly,  heard  more  or 
less  of  the  crime  of  piracy  as  generally  and  popularly  under 
stood.  A  pirate  is  deemed  by  the  law  of  nations,  and  has 
always  been  regarded  as  the  enemy  of  the  human  race, — as  a 
man  who  depredates  generally  and  indiscriminately  on  the 
commerce  of  all  nations.  Whether  or  not  the  crime  alleged 
here  is  piracy  under  the  law  of  nations,  is  not  material  to  the 
issue.  It  might  well  be  a  question  whether,  in  regard  to 
depredations  committed  on  the  high  seas,  by  persons  in  a 
foreign  vessel,  under  the  acknowledged  authority  of  a  foreign 
country,  Congress  could  effectively  declare  that  to  be  piracy 
which  is  not  piracy  under  the  law  of  nations ;  but  it  is  not  ma 
terial  in  this  case.  Congress  is  unquestionably  empowered  to 
pass  laws  for  the  protection  of  our  national  commerce  and  for 
the  punishment  of  those  who  prey  upon  it.  Congress  has  done 
so  in  the  statutes  to  which  I  have  referred.  If  the  words 
"  pirate  and  felon  "  were  stricken  out  from  the  act  of  1790, 
and  if  the  statutes  simply  read  that  any  person  committing 
robbery  on  the  high  seas  should  suffer  death,  the  law  would  be 
complete,  and  could  be  administered  without  reference  to 
what  constitutes  piracy  by  the  law  of  nations. 

Having  thus  referred  to  the  statutory  law  under  which  this 
indictment  was  found,  I  will  state  as  succinctly  as  possible,  with 


OF   THE    SCHOONEK    SAVANNAH.  17 

due  regard  to  fullness,  i'airness,  and  completeness,  the  facts  in 
this  case.  In  the  middle  or  latter  part  of  May,  1861,  a  number 
of  persons  in  the  city  of  Charleston,  South  Carolina,  conceived 
the  purpose  of  purchasing  or  employing  a  vessel  to  cruise  on 
the  Atlantic  with  the  object  of  depredating  on  the  commerce 
of  the  United  States.  They  proceeded  to  the  fulfillment  of  that 
design  by  procuring  persons  willing  to  act  as  captain,  officers, 
and  crew  of  such  piratical  vessel.  This  there  w<;s  at  first  con 
siderable  difficulty  in  effecting,  and  it  was  not  until  many  men 
were  thrown  out  of  employment  in  Charleston,  by  the  acts  of 
South  Carolina  and  of  what  is  called  the  Confederate  Govern 
ment,  and  by  the  action  of  the  United  States  Government  iu 
blockading  the  port  of  Charleston  and  other  Southern  ports, 
that  a  crew  could  be  found  to  man  this  vessel.  There  were  no 
shipping  articles  or  agreement  as  to  wages ;  but  it  was  under 
stood  that  all  were  to  share  in  the  plunder  or  proceeds  arising 
from  the  capture  of  American  vessels  on  the  high  seas.  We 
shall  show  to  you  that  the  prisoners  at  the  bar  were  finally  in 
duced  to  embark  on  this  enterprise ;  that  Captain  Baker  was 
one  of  the  first  to  engage  in  it ;  that  he  used  exertions  to  obtain 
a  crew,  and  succeeded,  after  considerable  difficulty.  On  Satur 
day,  the  first  of  June,  1861,  the  crew  were  embarked  on  a 
small  pilot  boat  and  proceeded  down  to  opposite  Fort  Sumter, 
where  they  were  transferred,  in  small  boats,  to  the  schooner 
Savannah.  We  shall  show,  by  the  declarations  of  the  parties 
who  stand  charged  here  to-day,  and  also  by  the  facts  and  cir 
cumstances  of  the  equipment  of  the  vessel,  the  intent  and  pur 
pose  of  this  voyage.  The  Savannah,  a  schooner  of  fifty-three 
or  fifty -four  tons,  was  armed  with  cannon  and  small  arms.  Pis 
tols  and  cutlasses  were  provided  for  her  men.  On  Sunday 
afternoon,  the  '2d  of  June,  she  sailed  from  opposite  Fort  Sumter, 
her  crew  numbering  about  twenty  men,  all  of  whom  are  here 
with  the  exception  of  six,  who  were  detached  to  form  a  prize 
crew  of  the  brig  Joseph.  On  the  morning  of  Monday,  the  3d 
of  June,  a  sail  was  descried ;  it  was  remarked  among  the  crew 
that  the  vessel,  from  her  appearance,  was  undoubtedly  a  Yan 
kee  vessel,  as  they  termed  it — a  vessel  owned  in  one  of  the 
Northern  States  of  the  Union.  She  proved  to  be  the  brig 
Joseph,  laden  with  sugar,  and  bound  from  Cardenas,  in  Cuba, 
to  Philadelphia.  The  Savannah,  displaying  the  American  flag, 
gave  chase.  When  within  hailing  distance,  Captain  Baker 
spoke  the  Joseph,  ordered  her  captain  on  board  his  schooner, 
and  ran  up  the  rebel  standard.  Captain  Meyer,  of  the  Joseph, 
perceiving  that  the  Savannah  was  armed,  and  that  her  men 
were  ready  for  assault,  fearing  for  his  safety  and  that  of  his 
crew,  obeyed  the  summons.  A  prize  crew  was  placed  on  board 
the  Joseph — the  captain  of  the  Savannah  declaring  that  he 
2 


18  TRIAL   OF   THE   OFFICERS   AND   CREW 

"  was  sailing  under  the  flag  of  the  Confederate  Government." 
The  Savannah  proceeded  on  her  cruise.  In  a  few  hours  after 
ward,  she  descried  the  United  States  brig-of-war  Perry.  Sup 
posing  her  to  be  a  merchant  vessel,  she  started  in  pursuit,  fired 
a  gun,  and  finally  fired  several  guns.  On  discovering,  how 
ever,  that  the  brig  was  a  United  States  vessel-of-war,  she  at 
tempted  resistance,  Captain  Baker  saving  to  his  men,  "  Now, 
boys,  prepare  for  action !"  When  within  speaking  distance,  the 
commander  of  the  Perry  asked  Captain  Baker  whether  he 
surrendered,  and  he  replied  that  he  did.  The  prisoners  were 
transferred  from  the  Savannah  to  the  Perry  ;  thence  to  the 
United  States  steam  ship-of-war,  Minnesota.  The  Savannah 
was  then  taken  in  charge  by  a  prize  crew  from  on  board  the 
Perry  and  brought  to  New  York.  Thu  Minnesota,  with  the 
prisoners  on  board,  proceeded — on  her  way  to  New  York — to 
Hampton  Roads,  where,  after  two  days,  she  transferred  the 
prisoners  to  the  Harriet  Lane,  which  delivered  them  at  New 
York.  Here  they  were  given  in  charge  to  the  United  States 
Marshal.  On  my  official  application,  a  warrant  was  issued  by 
a  United  States  Commissioner,  and  under  it  the  Marshal,  as 
directed,  took  formal  possession  of  and  held  the  prisoners. 
They  were  committed  lor  trial  and  were,  within  a  few  weeks 
afterwards,  indicted  by  the  United  States  Grand  Jury.  Al 
though  the  guilt  and  mischief  of  both  piracy  and  treason  may 
be  embraced  in  the  crime  and  its  consequences,  the  charge  is 
not  one  of  treason,  nor  necessarily  of  piracy,  as  commonly 
understood,  but  the  simple  one  of  violating  the  statutes  to  which 
I  have  referred. 

The  learned  District  Attorney  here  stated  the  evidence 
which  he  was  prepared  to  submit,  with  the  decisions  upon 
which  he  would  rest  the  case,  and  he  proceeded  to  cite  and 
comment  upon  the  following,  among  other  authorities  : — U.  S. 
v.  Furlong,  5  Wheaton,  184;  U.  S.  v.  Klintock,  5  Id.,  144;  Nueva 
Anna  and  Liebre,  6  Id.,  193;  U.  S.  v.  Holmes,  5  Id.,  412; 
U.  S.  v.  Palmer,  3  Id.,  610  ;  U.  S.  v.  Tully,  1  Gallison,  first  ed., 
247 ;  U.  S.  v.  Jones,  3  Wash.  Circuit  Court  Rep.,  20.* ;  U.  S. 
v.  Howard,  3  Id.,  340  ;  U.  S.  v.  Gibert,  2  Sumner,  19  ;  U.  S. 
v.  Smith,  5  Wheaton,  153  ;  3  Chitty's  Criminal  Law,  1128  ;  1 
Kent's  Com.,  25,  note  c,  and  cases  cited ;  I  Id.,  99,  100,  and 
cases  cited  ;  1  Id.,  184, 185, 186, 187, 188, 191,  and  cases  cited. 
Decisions  as  to  jurisdiction  :  U.  S.  v.  Hicks,  MS.  Judge  Nel 
son  ;  Irvine  v.  Lowry,  14  Peters,  293,  299  ;  Sheppard  v.  Graves, 
14  Howard,  505  ;  D'Wolf  v.  Rabaud,  1  Peters,  476,  498.  Mr. 
SMITH  then  continued  as  follows  : 

The  atrocity  of  the  authors  and  leaders  of  this  rebellion 
against  a  government  whose  authority  has  never  been  felt,  with 
the  weight  of  a  feather,  upon  the  humblest  citizen,  except  for 
crime,  has  been  portrayed  so  much  more  eloquently  than  I  could 


OF   THE    SCHOONER    SAVANNAH.  19 

present  it,  that  I  should  not  indulge  in  extended  remarks  on  that 
subject,  even  if  relevant  to  the  case.  Ignominy  and  death  will 
be  their  just  portion.  The  crime  of  those  who  have  acted  as  the 
agents  and  servants  of  these  leaders  is  also  a  grave  one — a  very 
grave  one — mitigated,  no  doubt,  by  ignorance,  softened  by  a 
credulous  belief  of  misrepresentations,  and  modified  by  the  very 
air  and  atmosphere  of  the  place  from  which  these  prisoners  em 
barked.  It  is,  undoubtedly,  a  case  where  the  sympathies  of  the 
jury  and  of  counsel — whether  for  the  prosecution  or  the  defence 
— may  be  well  excited  in  reference  to  many,  if  not  all,  of  the  pris 
oners  at  the  bar,  misguided  and  misdirected  as  they  have  been. 
But  it  will  be  your  duty,  gentlemen,  while  allowing  these  con 
siderations  to  induce  caution  in  rendering  your  verdict,  to  dis 
regard  them  so  far  as  to  give  an  honest  and  truthful  return  on 
the  evidence,  and  on  the  law  as  it  will  be  stated  to  you  by  the 
Court.  This  is  all  the  prosecution  asks.  As  to  the  policy  of 
ultimately  allowing  the  law  to  take  its  course  in  this  case,  it  is 
not  necessary  for  us  to  express  any  opinion  whatever.  That  is 
a  question  which  the  President  of  the  United  States  must  de 
termine  if  this  trial  should  result  in  a  conviction.  It  is  for  him, 
not  for  us.  You  must  leave  it  wholly  to  those  who  are  charged 
with  high  duties,  after  you  shall  have  performed  yours. 

The  case  is  of  magnitude ;  but  the  issue  for  you  to  deter 
mine  is  simple.  Leaving  out  of  view  the  alleged  authority 
under  which  the  prisoners  claim  to  have  acted,  you  will  in 
quire,  in  the  first  instance,  whether  the  seizure  of  the  Joseph 
and  her  lading  was  robbery.  You  will  be  unable  to  discover 
that  any  element  of  the  crime  was  wanting.  If  no  actual  force 
was  employed  in  compelling  the  surrender,  it  is  enough  that 
the  captain  and  crew  were  put  in  bodily  fear.  So  the  traveler 
delivers  his  purse  in  obedience  to  a  request,  and  the  crime  is 
complete,  although  violence  proves  unnecessary.  That  the 
humble  owners  of  the  brig  were  despoiled  of  their  property — 
how  hardly  earned  we  know  not — will  not  be  disputed.  ]N"or 
is  it  material  that  the  proceeds  were  to  be  shared  between  the 
prisoners  and  absent  confederates.  As  to  the  question  of  in 
tent,  it  cannot  be  denied  that  the  prisoners  designed  to  do,  and 
to  profit  by,  what  they  did.  They  are  without  excuse,  unless 
possessed  of  a  valid  commission.  This  brings  us  to  the  plea  of 
authority. 

A  paper,  purporting  to  be  a  letter  of  marque,  signed  by 
Jefferson  Davis,  was  found  on  the  Savannah.  Such  a  commis 
sion  is  of  no  effect,  in  our  courts  of  law,  unless  emanating  from 
some  government  recognized  by  the  Government  of  the  United 
States.  The  political  authority  of  the  nation,  at  Washington, 
has  never  recognized  the  so-called  Confederate  States  as  one  of 
the  family  of  nations.  On  the  contrary,  it  resists  their  preten 
sions,  and  proclaims  them  in  rebellion.  In  this  position  of  affairs, 


20  TRIAL    OF   THE    OFFICERS   AND   CREW 

a  court  of  justice  will  not,  nor  can  you  as  its  officers,  regard  the 
letter  as  any  answer  to  the  case  which  the  prosecution  will  es 
tablish.  Such  is  the  law.  It  is  so  determined  in  decisions  of 
the  Supreme  Court  of  the  United  States,  which  I  have  just 
cited. 

I  will  now  proceed  with  the  examination  of  the  witnesses. 

Albert  G.  Ferris  called  and  sworn.  Examined  by  Dis 
trict  Attorney  Smith : 

Q.  Where  were  you  born? 

A.  In  Barnstable,  Massachusetts. 

Q.  How  old  are  you  ? 

A.  Fifty  on  the  10th  of  September  last. 

Q.  Have  you  a  family?     A.  Yes,  sir. 

Q.  Does  your  family  reside  at  Charleston? 

A.  Yes,  pir,  at  Charleston,  South  Carolina. 

Q.  How  long  have  you  resided  at  Charleston  ? 

A.  Since  1837. 

Q.  What  has  been  yonr  business  there? 

A.  Sea-faring  man. 

Q.  In  what  capacity  have  you  acted  as  a  sea-faring  man  ? 

A.  As  master  and  mate. 

Q.  In  what  crafts? 

A.  In  various  crafts,  small  and  large,  and  steamers. 

Q.  Sailing  out  of  the  port  of  Charleston  ? 

A.  Yes,  and  from  ports  of  New  York,  and  Virginia,  and 
other  places. 

(j.  In  what  capacity  were  you  acting  just  prior  to  the  time 
you  embarked  on  board  the  Savannah  ? 

A.  I  was  acting  as  master  of  a  vessel  sailing  from  Charles 
ton  on  the  Southern  rivers,  in  the  rice  and  cotton  trade. 

Q.  What  was  the  name  of  the  vessel? 

A.  The  James  H.  Ladson,  a  schooner  of  about  seventy-five 
tons. 

Q.  Was  the  business  in  which  you  were  engaged  stopped  ? 

A.  Yes,  sir. 

Q.  At  what  time?     A.  In  December,  1860. 

Q.  What  was  your  employment  after  that? 

A.  I  had  no  employment  after  that.  The  blockade  pre 
vented  vessels  from  going  out,  although  some  did  get  out  after 
the  blockade  was  established. 

Q.  State  the  facts  and  circumstances  which  preceded  your 
connection  with  the  Savannah? 

A.  I  joined  the  Savannah  as  a  privateer,  through  the  influ 
ence  of  acquaintances  of  mine,  with  whom  I  had  sailed,  and 
from  the  necessity  of  having  something  to  do,  and  under  the 
idea  of  legal  rights  from  the  Confederate  Government. 


OF  THE   SCHOONER   SAVANNAH.  21 

Q.  What  did  you  first  do  in  reference  to  shipping  on  the 
Savannah  ? 

A.  I  was  on  the  bay  with  an  acquaintance  of  mine,  named 
James  Evans,  who  is  now,  I  believe,  at  Charleston,  and  who 
spoke  to  me  about  it. 

Q.  Was  Evans  one  of  the  crew  of  the  Savannah  ? 

A.  Yes,  he  was  one  of  the  prize  crew  that  went  off  with  the 
Joseph.  He  solicited  me  to  join  him,  and  said  that  he  knew  Cap 
tain  Baker,  and  that  he  and  others  were  going  in  the  Savannah. 

Q.  Where  did  you  see  him  ? 

A.  I  saw  him  on  the  bay  at  Charleston. 

Q.  Did  you  go  anywhere  with  him  in  reference  to  enlisting? 

A.  Yes,  we  went  to  the  house  of  Bancroft  &  Son,  and  I  was 
there  introduced  to  Captain  Baker. 

Q.  Did  you  recognize  Captain  Baker  on  the  cruise  ? 

A.  Yes,  I  recognized  him  then  and  since. 

Q.  State  the  conversation  ? 

A.  Mr.  Evans  recommended  me  to  Captain  Baker  as  a 
man  who  was  acquainted  with  the  coast,  and  who  was  likely  to 
be  just  the  man  to  answer  his  purpose.  I  partly  made  arrange 
ments  with  Captain  Baker  to — that  is,  he  was  to  send  for  me 
when  he  wanted  me.  He  further  proposed,  as  nothing  was 
doing,  that  he  would  give  me  a  job  to  go  to  work  on  board  the 
Savannah  and  fit  her  out ;  but  I  had  some  little  business  to  at 
tend  to  at  the  time  and  declined. 

Q.  State  the  conversation  at  Bancroft  &  Son's  when  you 
and  Evans  and  Captain  Baker  were  there  ? 

A.  These  were  the  items,  as  near  as  my  memory  serves  me  : 
that  we  were  going  on  a  cruise  of  privateering,  i  considered 
it  was  no  secret.  It  was  well  known,  and  posted  through  the 
city.  Previous  to  that  I  had  met  some  of  the  party,  who 
talked  about  going,  and  who  asked  me  whether  I  had  an  idea 
of  going,  and  1  said  I  had  talked  about  it.  They  said  that  Cap 
tain  Baiter  was  the  officer.  I  then  declined  to  go,  and  did  not 
mean  to  go  in  her  until  Saturday  morning. 

Q.  Did  you  have  a  further  interview  with  Captain  Baker, 
or  any  others  of  these  men  ? 

A.  I  had  no  other  interview  with  Captain  Baker  at  that 
time.  I  had  no  acquaintance  with  Captain  Baker,  or  any  on 
board,  except  these  men  who  came  from  shore  with  me. 

Q.  Did  you  see  any  one  else  in  reference  to  shipping  on 
this  vessel,  except  those  you  mentioned  ? 

A.  I  believe  there  was  a  man  by  the  name  of  Mills  who 
talked  of  it.  He  did  not  proceed  in  the  vessel.  I  believe  he 
fitted  her  out,  but  did  not  go  in  her. 

Q.  Did  you  talk  to  any  one  else  in  regard  to  going  ? 

A.  No ;  he  only  told  me  he  was  going  to  get  a  crew. 

Q.  What  articles  did  you  see  drawn  up  ? 


22  TRIAL   OF   THE   OFFICERS  AND    CREW 

A.  There  were  no  articles  whatever  drawn  up,  and  I  do 
not  know  what  arrangements  were  made.  I  understood  since 
I  have  been  here  that  arrangements  were  made,  but  they  were 
not  proposed  to  me.  It  was  a  mere  short  cruise  to  be  under 
taken. 

Q.  Was  the  purpose  or  object  of  the  cruise  stated  ? 

A.  It  was  the  object  of  going  out  on  a  cruise  of  privateer 
ing. 

Q.  When  did  you  embark  on  the  vessel  ? 

A.  On  Saturday  night,  the  1st  of  June,  1861. 

Q.  Do  you  recollect  who  embarked  with  you  that  night  ? 

A.  Some  five  or  six  of  us. 

Q.  Give  their  names  ? 

A.  Alexander  Coid  was  one  (witness  identified  him  in 
Court),  Charles  Clarke  was  another,  and  Livingston  or  Knick 
erbocker  was  another.  I  do  not  recollect  any  more  names. 
There  was  a  soldier,  whose  name  I  do  not  know,  who  went  on 
the  prize  vessel. 

Q.  How  did  you  get  from  the  dock  at  Charleston  ? 

A.  In  a  small  boat  to  a  pilot-boat,  and  in  the  pilot-boat  to 
the  Savannah  in  the  stream.  She  was  lying  about  three  miles 
from  the  city,  and  about  three-quarters  of  a  mile  from  Fort 
Sumter. 

Q.  How  did  you  get  from  the  pilot-boat  to  the  Savannah  ? 

A.  In  a  small  boat. 

Q.  And  from  the  dock  at  Charleston  to  the  pilot-boat  ? 

A.  In  a  small  boat. 

Q.  Did  any  one  have  any  direction  in  the  embarkation  ? 

A.  No  one,  particular.  There  were  some  agents  employed 
to  carry  us  down.  There  was  no  authority  used  whatever. 

Q.  When  did  you  sail  from  Charleston  in  the  Savannah  ? 

A.  On  Sunday  afternoon  from  the  outer  roads. 

Q.  When  did  you  weigh  anchor  and  sail  from  Fort  Sum 
ter?  A.  On  Sunday  morning,  about  9  or  10  o'clock. 

Q.  Do  you  know  the  men  you  saw  on  board  ? 

A.  Yes,  sir. 

Q.  Do  you  know  the  names  of  all  the  prisoners  ? 

A.  I  believe  I  do,  pretty  nearly.  I  do  not  know  that  I 
could  pronounce  the  name  of  the  steward  or  cook,  but  I  know 
that  they  were  with  us. 

(The  prisoner,  Passalaigue,  was  asked  to  stand  up,  and  the 
witness  identified  him.) 

Q.  What  was  his  position  on  board  ? 

A.  I  do  not  know  what  his  position  was.  I  never  learned 
that.  He  was  on  board  as  if  superintending  the  provisions,  or 
something  of  that  kind. 

(The  prisoner,  John  Harleston,  was  asked  to  stand  up,  and 
witness  identified  him.) 


OF    THE    SCHOONER    SAVANNAH.  23 

Q.  What  position  had  he  on  board  ? 

A.  I  do  not  know  what  he  did  on  board,  anything  more 
than  that  he  arranged  the  big  gun,  and  asked  assistance  to 
lend  him  a  hand  in  managing  the  gun. 

Q.  Was  he  an  officer,  or  seaman  ? 

A.  I  believe  he  is  no  seaman. 

Q.  In  what  capacity  did  he  act  on  board  ? 

A.  Nothing  further  than  that,  so  far  as  I  learned. 

Q.  Did  you  hear  him  give  any  directions? 

A.  No,  sir  ;  1  was  at  the  helm  most  of  the  time,  when  any 
thing  was  done  at  the  gun. 

(The  prisoner,  Henry  Howard,  was  asked  to  stand  up,  and 
witness  identified  him.) 

Q.  In  what  capacity  was  he  ? 

A.  That  was  more  than  I  learned.  They  were  all  on  board 
when  I  joined  her. 

Q.   W  as  he  a  seaman  or  officer  ? 

A.  He  stood  aft  with  the  rest  of  us,  and  assisted  in  work 
ing  the  vessel. 

(The  prisoner,  Del  Cano,  was  directed  to  stand  up,  and 
witness  identified  him  as  being  the  steward.  He  also  identi 
fied  Henry  Oman  as  attending  to  the  cooking  department. 
The  prisoner  was  directed  to  stand  up,  and  was  identified  by 
the  witness.) 

Q.  In  what  capacity  was  he  ? 

A.  The  same  as  the  rest — a  seaman. 

(Witness  also  identified  William  Charles  Clarke,  Richard 
Palmer,  and  John  Murphy,  as  seamen,  and  Alexander  C.  Coid, 
as  seaman.  Martin  Galvin,  the  prisoner,  was  directed  to  stand 
up,  and  was  identified  by  the  witness.) 

Q.  Was  he  a  seaman  ? 

A.  I  do  not  think  he  was  either  seaman  or  officer. 

Q.  What  did  he  do  on  board  ? 

A.  Little  of  anything.  There  was  very  little  done  any 
way. 

Q.  Did  he  take  part  in  working  the  vessel  ? 

A.  Very  little,  if  anything  at  all.  I  believe  he  took  part 
in  weighing  anchor. 

Q.  You  identify  Captain  Baker  as  captain  of  the  vessel  ? 

A.  Yes,  I  could  not  well  avoid  that. 

Q.  How  many  more  were  there  besides  those  you  have 
identified  ? 

A.  Some  six.  I  think  about  eighteen  all  told,  not  includ 
ing  Knickerbocker  and  myself. 

Q.  How  many  went  off  on  the  Joseph  ? 

A.  There  were  six  of  them. 

Q.  Did  any  of  those  that  are  now  here  go  off  on  the  Jo 
seph? 


24:  TRIAL    OF   THE    OFFICERS    AND    CREW 

A.  No,  I  believe  not.  1  know  all  here.  We  have  been 
long  enough  in  shackles  together  to  know  one  another. 

Q.  Do  you  remember  the  names  of  those  that  went  on  the 
Joseph  ? 

A.  I  know  two  of  them — one  named  Hayes,  and  Evans, 
the  Charleston  pilot. 

Q.  The  same  Evans  who  went  on  board  with  you  ? 

A.  Yes,  sir ;  he  was  a  Charleston  pilot. 

Q.  What  did  Hayes  and  Evans  do  on  board  ? 

A.  They  did  the  same  as  the  rest — all  that  was  to  be  done. 

Q.  Were  either  of  them  officers  ? 

A.  Mr.  Evans  was  the  Charleston  pilot.  lie  gave  the 
orders  when  to  raise  anchor  and  go  out.  He  acted  as  mate 
and  pilot  when  he  was  there.  I  presume  he  had  as  much  au 
thority,  and  a  little  more,  than  any  one  else  ;  he  was  pilot. 

Q.  What  did  Hayes  do  ? 

A.  He  was  an  old,  experienced  man — did  the  same  as  the 
rest — lived  aft  with  the  rest.  He  was  a  seaman. 

Q.  The  other  four,  whose  names  you  do  not  recollect,  did 
they  act  as  seamen  ?  A.  Exactly,  sir. 

Q.  Any  of  them  as  officers  ? 

A.  No,  sir ;  if  they  were,  they  were  not  inaugurated  in 
any  position  while  I  was  there. 

Q.  What  did  you  do  ? 

A.  I  did  as  I  was  told  by  the  captain's  orders — steered  and 
made  sail. 

Q.  What  time  did  you  get  off  from  the  bar  in  Charleston  ? 

A.  We  got  off  Sunday  afternoon  and  made  sail  east,  out 
side  of  the  bar,  and  proceeded  to  sea. 

Q.  Do  you  remember  any  conversation  on  board  when 
any  of  the  prisoners  were  present  ? 

A.  Yes  ;  we  talked  as  a  party  of  men  would  talk  on  an  ex 
pedition  of  that  kind. 

Q.  What  was  said  about  the  expedition  ? 

A.  That  we  were  going  out  privateering.  The  object  was 
to  follow  some  vessels,  and  that  was  the  talk  among  ourselves. 

Q.  Did  anything  happen  that  night,  particularly? 

A.  No,  sir  ;  nothing  happened,  except  losing  a  little  main 
top  mast. 

Q.  What  course  did  you  take  ? 

A.  We  steered  off  to  the  eastward. 

Q.  Did  you  steer  to  any  port  ? 

A.  No,  sir ;  we  were  not  bound  to  any  port,  exactly. 

Q.  What  directions  were  given  in  respect  to  steering  the 
vessel  ? 

A.  To  steer  off  to  the  eastward,  or  east  by  south,  just  aa 
the  wind  was  ;  that  was  near  the  course  that  was  ordered. 


OF  THE   SCHOONER   SAVANNAH.  25 

Q.  When  did  you  fall  in  with  the  Joseph  ? 

A.  On  Monday  morning,  the  3d. 

Q.  Do  you  remember  who  discovered  the  Joseph  ? 

A.  I  think  it  was  Evans,  at  the  masthead. 

Q.  What  did  he  cry  out  ? 

A.  He  sung  out  there  was  a  sail  on  the  starboard  bow, 
running  down,  which  proved  afterwards  to  be  the  brig  Juseph. 

Q.  State  all  that  was  said  by  or  in  the  presence  of  the 
prisoners  when  and  after  the  vessel  was  descried  ? 

A.  We  continued  on  that  course  for  two  or  three  hours. 
We  saw  her  early  in  the  morning,  and  did  not  get  up  to  her 
until  9  or  10  o'clock. 

Q.  How  early  did  you  see  her  ? 

A.  About  6  o'clock.  There  were  other  vessels  in  sight. 
We  stood  off  on  the  same  course,  when  we  saw  this  brig, — I 
think  steering  northeast  by  east.  We  made  an  angle  to  cut 
her  off,  and  proceeded  on  that  course  until  we  fell  in  with  her. 

Q.  What  was  said  while  running  her  down  ? 

A.  When  near  enough  to  be  seen  visibly  to  the  eye,  our 
men,  Mr.  Hayes,  and  the  others,  said  she  was  a  Yankee  vessel ; 
she  was  from  the  West  Indies,  laden  with  sugar  and  molasses. 
The  general  language  was  very  little  among  the  men  ;  in  fact, 
sailor-like,  being  on  a  flare-up  before  we  left  port,  not  much 
was  said. 

Q.  State  what  was  said  ? 

A.  Well,  first  the  proposition  was  made  that  it  was  a  Yan 
kee  prize  ;  to  run  her  down  and  take  her.  That  was  repeated 
several  times.  Nothing  further,  so  far  as  I  know  of. 

Q.  During  the  conversation  were  all  hands  on  deck  ? 

A.  Yes,  sir,  all  hands  on  deck.  In  fact,  they  had  been  on 
deck.  It  was  very  warm  ;  our  place  was  very  small  for  men 
below.  In  fact,  we  slept  on  deck.  No  one  slept  below,  while 
there,  much.  It  was  a  very  short  time  we  were  on  board  of  her — 
from  Saturday  to  Monday  night — when  we  were  taken  off. 

Q.  What  was  said  was  said  loud,  so  as  to  be  heard  ? 

A.  Yes ;  it  was  heard  all  about  deck.  That  was  the  principal 
of  our  concern  in  going  out ;  it  was  our  object  and  our  conver 
sation. 

Q.  When  you  ran  along  down  towards  the  Joseph,  state 
what  was  said. 

A.  That  was  about  the  whole  of  what  occurred — the  men 
talking  among  themselves. 

Q.  When  you  got  to  the  Joseph  what  occurred? 

A.  She  was  hailed  by  Captain  Baker,  and  requested  to  send 
a  boat  on  board. 

Q.  Who  answered  the  hail  ? 

A.  I  believe  Captain  Meyer,  of  the  brig. 


26  TRIAL   OF  THE   OFFICERS   AND   CREW 

Q.  Would  you  recognize  Captain  Meyer  now  ? 

A.  Yes,  sir. 

Q.  State  what  Captain  Baker  said  ? 

A.  Captain  Baker,  as  near  as  I  can  bear  in  mind,  hailed 
him,  and  told  him  to  come  on  board  and  fetch  his  papers. 

Q.  Did  Captain  Meyer  come  on  board  ? 

A.  He  lowered  his  boat,  and  came  on  board  with  his  own 
boat  and  crew.  Captain  Baker  said  to  him  that  he  was  under 
the  Confederate  flag,  and  he  considered  him  a  prisoner,  and  his 
vessel  a  prize  to  the  Confederate  Government. 

Q.  Repeat  that  ? 

A.  If  I  bear  in  mind,  Captain  Meyer  asked  what  authority 
he  had  to  hail  his  vessel,  or  to  that  enect.  The  reply  of  Cap 
tain  Baker,  I  think,  was  that  he  was  under  a  letter  of  marque 
of  the  Confederate  Government,  and  he  would  take  him  as  a 
prisoner,  and  his  vessel  as  a  prize  to  the  Southern  Confederacy. 
I  do  not  know  the  very  words,  but  that  was  the  purport  of  the 
statement,  as  near  as  1  understood. 

Q.  When  Captain  Baker  hailed  the  Joseph,  do  you  remem 
ber  the  language  in  which  he  hailed  her  ? 

A.  I  think,  "  Brig,  ahoy  !  Where  are  you  from  ?"  He 
answered  him  where  from — I  think,  from  Cardenas ;  I  think, 
bound  to  Philadelphia  or  New  York. 

Q.  Did  he  inquire  about  the  cargo  ? 

A.  No,  sir,  I  think  not,  until  Captain  Meyer  came  on  board. 
We  were  but  a  short  distance  from  the  brig.  The  brig  was 
hove  to. 

Q.  Do  you  remember  anything  further  said  by  Captain 
Baker,  or  any  of  the  prisoners  ? 

A.  He  had  some  further  conversation  with  Captain  Meyer, 
on  the  deck,  with  respect  to  the  vessel,  where  from,  the  cargo, 
and  the  like  of  that.  She  had  in  sugars,  as  near  as  my  memory 
serves  me. 

Q.  What  flag  had  the  Savannah,  or  how  many  ? 

A.  She  had  the  Confederate  flag. 

Q.  What  other  flags,  if  any  ? 

A.  She  had  the  United  States  flag. 

Q.  Any  other? 

A.  No,  sir,  I  do  not  know  that  she  had  any  other. 

Q.  Did  you  notice  what  flag  the  Joseph  had? 

A.  I  did  not  see  her  flag,  or  did  not  notice  it.  I  saw  her 
name,  and  where  she  hailed  from.  I  knew  where  she  be 
longed. 

Q.  What  was  on  her  stern  ? 

A.  I  think  "The  Joseph,  of  Rockland."  I  knew  where  it 
was.  1  had  been  there  several  times. 


OF   THE    SCHOONER    SAVANNAH.  27 

Q.  When  the  sail  was  first  descried  was  there  any  flag 
flying  on  the  Savannah  ?  A.  No,  sir. 

Q.  When  you  ran  down  towards  the  Joseph  was  there  any 
flying  ? 

A.  Yes,  sir,  we  had  the  Confederate  flag  flying,  and,  I  be 
lieve,  the  American  flag. 

Q.  Which  was  it? 

A.  I  believe  both  flying — first  one,  and  then  the  other. 

Q.  Which  first? 

A.  I  think  the  Stars  and  Stripes  first.  I  am  pretty  certain 
that  Mr.  Evans  then  hauled  that  down. 

Q.  When  running  down  toward  the  Joseph  you  had  the 
American  flag  flying  ? 

A.  Yes,  sir;  I  think  so;  and  Mr.  Evans  hauled  down  that, 
and  put  up  the  Confederate  flag,  when  we  got  close  to  her. 

Q.  She  ran  with  the  American  flag  until  close  to  her,  and 
then  ran  up  the  Confederate  flag  ? 

A.  Yes,  when  some  mile  or  so  of  her — in  that  neighborhood. 

Q.  Do  you  remember  who  gave  the  order  to  the  prize  crew 
to  leave  the  Savannah  and  go  on  board  the  Joseph? 

A.  Issued  the  orders  ?  Well,  Captain  Baker,  I  believe,  told 
the  pilot,  Mr.  Evans,  to  select  his  men,  and  go  with  the  boat. 

Q.  And  they  went  on  board  ? 

A.  Yes,  they  went  on  board. 

Q.  Do  you  remember  anything  said  among  the  men,  after 
the  prize  crew  went  off,  in  respect  to  the  Joseph,  or  her  cargo, 
or  her  capture  ? 

A.  Captain  Meyer  was  there,  and  stated  what  he  had  in  her, 
and  where  he  was  from,  and  so  forth.  We  were  merely  talking 
about  that  from  one  to  the  other. 

Q.  Do  you  remember  any  directions  given  to  the  prize  crew, 
as  to  the  Joseph — where  to  go  to  ? 

A.  I  do  not  recollect  Captain  Baker  directing  where  to  get 
her  in,  or  where  to  proceed  with  her.  Evans  was  better 
authority,  I  presume,  than  Captain  Baker,  where  to  get  her  in. 

Q.  Any  directions  as  to  where  the  vessel  was  to  be  taken  ? 

A.  No,  sir;  either  to  Charleston  or  Georgetown- — the  nearest 
place  where  they  could  get  in,  and  evade  the  blockade.  That 
was  the  reason  of  having  the  pilot  there. 

Q.  Did  Captain  Meyer  remain  on  board  the  Savannah? 

A.  Yes,  sir,  until  we  were  captured,  and  then  he  was  trans 
ferred  to  the  brig  Perry,  with  the  rest  of  us. 

?.  What  direction  did  the  Joseph  take  after  she  parted-from 

A.  Stood  in  northward  and  westward.  Made  her  course 
about  northwest,  or  in  that  neighborhood. 


20  TRIAL    OF   THE    OFFICERS    AND    CREW 

Q.  In  what  direction  from  Charleston  and  how  far  from 
Charleston  was  the  Joseph  ? 

A.  I  think  Charleston  Bar  was  west  of  us  about  50  or  55 
miles. 

Q.  Out  in  the  open  ocean  ? 

A.  Yes,  sir.  I  calculated  that  Georgetown  light  bore  up 
about  35  miles  in  the  west ;  but  whether  that  is  correct  or  not  I 
cannot  say. 

Q.  Where  was  the  nearest  land,  as  nearly  as  you  can  state  ? 

A.  I  think  the  nearest  land  was  Ball's  Island,  somewhere 
in  the  neighborhood  of  north  and  west,  35  or  40  miles. 

Q-  What  sail  did  you  next  fall  in  witli  ( 

A.  We  fell  in  witli  a  British  bark  called  the  Berkshire. 

Q.  What  did  you  do  when  you  fell  in  with  her  ? 

A.  We  passed  closely  across  her  stern.  She  was  steering 
to  the  northward  and  eastward — I  suppose  bound  to  some 
Northern  port, 

Q.  That  was  a  British  brig  ?     A.  Yes,  sir. 

Q.  What  was  the  next  sail  you  fell  in  with  ? 

A.  The  next  sail  we  fell  in  with  was  the  brig-of-war  Perry. 

Q.  At  what  time  did  you  descry  her  ? 

A.  I  suppose  about  3  o'clock  in  the  afternoon  of  the  same 
day. 

Q.  Where  were  you  when  you  fell  in  with  her? 

A.  We  were  somewhere  in  the  same  parallel.  We  saw 
the  brig  Perry  from  the  masthead,  and  stood  towards  her. 

Q.  What  was  said  when  she  was  seen? 

A.  W^e  took  her  to  be  a  merchant  vessel.  That  was  our  idea, 
and  we  stood  to  the  westward. 

Q.  Did  you  make  chase  ? 

A.  Yes,  sir,  we  stood  to  the  westward  when  we  saw  her ; 
and  the  brig  Joseph,  that  we  took,  saw  her.  The  Perry,  I  pre 
sume,  saw  us  before  we  saw  her,  and  was  steering  for  us  at  the 
time  we  were  in  company  witli  the  Joseph. 

Q.  How  far  off  was  the  Joseph  at  the  time  ? 

A.  Not  more  than  three  or  four  miles.  When  we  made  her 
out  to  be  the  brig-of-war  Perry,  we  then  tacked  ship  and  pro 
ceeded  to  sea,  to  clear  her. 

Q.  How  near  was  the  brig  Perry  when  you  first  discovered 
she  was  a  man-of-war  ? 

A.  I  should  think  she  was  all  of  10  or  11  miles  off. 

Q.  The  brig  Perry  made  chase  for  you?     A.  Yes,  sir. 

Mr.  Larocque :  If  the  Court  please,  from  the  opening  of 
counsel  I  suppose  he  is  now  proceeding  to  that  part  of  the  case 
that  he  laid  before  the  jury  in  his  opening,  that  consists  in  an 
exchange  of  shots  between  the  brig  Perry  and  the  Savannah. 


OF   THE   SCHOONER   SAVANNAH.  29 

We  object  to  that.  There  is  no  charge  in  the  indictment  of  re 
sisting  a  United  States  cruiser,  or  of  any  assault  whatever. 

Mr.  Smith :  What  the  vessel  did  on  the  same  day,  before 
and  after  the  main  charge,  goes  to  show  the  purpose  of  the 
voyage — the  general  object  of  the  Savannah  and  her  crew.  It 
may  be  relevant  in  that  respect. 

Mr.  Larocque :  We  are  not  going  to  dispute  the  facts  testi 
fied  to  by  this  witness.  There  will  be  no  dispute  on  this  trial  that 
this  was  a  privateer — that  her  object  was  privateering  under 
the  flag  of  the  Confederate  Government,  and  by  authority  of 
that  Government,  and,  under  these  circumstances,  the  gentle 
man  has  no  need  to  trouble  himself  to  characterize  these  acts 
by  showing  anything  that  occurred  between  the  Savannah  and 
the  Perry.  Your  honor  perceives  at  once  that  this  indictment 
might  have  been  framed  in  a  different  way,  under  the  8th  sec 
tion  of  the  Actot  1790,  with  a  view  of  pro  vingacts  of  treason,  if  you 
please,  which  are  made  piracy,  as  a  capital  offence,  by  that  act. 
The  counsel  has  elected  his  charge,  and  he  has  strictly  confined 
the  charge  in  the  indictment  to  the  allegation  of  what  occurred 
between  the  Savannah  and  the  Joseph.  There  is  not  one  word 
in  the  indictment  of  any  hostilities  between  the  Perry  and  the 
Savannah,  and  therefore  it  must  be  utterly  irrelevant  and  im 
material  under  this  indictment.  Evidence  on  that  subject 
would  go  to  introduce  a  new  and  substantial  charge  that  we 
have  not  been  warned  to  appear  here  and  defend  against,  and 
have  not  come  prepared  to  defend  against,  for  that  reason.  So 
far  as  characterizing  the  acts  we  are  charged  with  in  the  indict 
ment,  there  can  be  no  difficulty  whatever. 

The  Court:  I  take  it  there  is  no  necessity  for  this  inquiry 
after  the  admission  made. 

Mr.  Evarts :  We  propose  to  show  the  arrest  and  bringing 
of  the  vessel  in,  with  her  crew. 

The  Court :  Of  course. 

Mr.  Evarts  :  That  cannot  very  well  be  done  without  show 
ing  the  way  in  which  it  was  done. 

The  Court :  But  it  is  not  worth  while  to  take  up  much  time 
with  it. 

Mr.  Brady :  The  witness  has  stated  that  this  vessel  was  cap 
tured,  and  he  has  stated  the  place  of  her  capture  ;  and  of  course  it 
is  not  only  proper,  but,  in  our  view,  absolutely  necessary,  that  the 
prosecution  should  show  that,  being  captured,  she  was  taken  into 
some  place  out  of  which  arose  jurisdiction  to  take  cognizance  of 
the  alleged  crime.  But  the  cannonading  is  no  part  of  that. 

Q.  By  Mr.  Smith  :  State  the  facts  in  regard  to  the  capture 
of  the  Savannah  by  the  Perry. 

A.  Well,  the  brig  Perry  ran  down  after  dark  and  overtook 
us;  came  within  haiJ. 


30  TRIAL   OF   THE   OFFICERS   AND   CREW 

Q.  At  what  time? 

A.  Near  8  o'clock  at  night.  Without  any  firing  at  all, 
she  hailed  the  captain  to  heave  to,  and  he  said  yes  ;  she  told 
him  to  send  his  boat  on  board.  He  said  that  he  had  no  boat 
sufficient  to  go  with.  They  then  resolved  to  send  a  boat  for 
us,  and  did  so,  and  took  us  off.  That  was  the  result. 

Q.  The  Perry  sent  her  boat  to  the  Savannah  ? 

A.  Yes,  sir ;  we  had  no  boat  sufficient  to  take  our  crew 
aboard  of  her.  We  had  a  small  boat,  considerably  warped, 
and  it  would  not  float. 

Q.  Where  at  sea  was  the  capture  made  of  the  Savannah 
by  the  Perry  ?  A.  It  was  in  the  Atlantic  Ocean. 

Q.  About  how  far  from  Charleston  ? 

A.  Wei!,  about  50  miles  from  Charleston  light-house,  in 
about  45  fathoms  of  water. 

Q.  How  far  from  land  ? 

A.  I  suppose  the  nearest  land  was  Georgetown  light,  about 
35  or  40  miles;  I  should  judge  that  from  my  experience  and 
the  course  we  were  running. 

Q.  Were  you  all  transferred  to  the  Perry  ?     A.  Yes,  sir. 

Q.  When  was  that  ? 

A.  Monday  night ;  it  was  later  than  8  o'clock. 

Q.  Transferred  by  boats  ? 

A.  Yes,  sir ;  the  Perry's  boats.  She  sent  her  boat,  with 
arms  and  men,  and  took  us  on  board.  There  we  were  all  ar 
rested  and  put  in  irons  that  night,  except  the  captain  and  Mr. 
Harleston,  I  believe.  I  do  not  know  whether  they  were,  or 
not. 

Q.  Was  Mr.  Knickerbocker  put  on  board  the  Perry,  with 
the  rest?  A.  Yes,  sir,  and  on  board  the  Minnesota,  with  us. 

Q.  Who  were  put  in  charge  of  the  Savannah  ?  Were  there 
any  men  of  the  Perry  ? 

A.  Yes,  sir;  I  believe  they  sent  a  naval  officer  on  board  to 
take  charge  of  her,  and  a  crew ;  and  I  think  they  took  Mr. 
Knickerbocker  and  Capt.  Meyer,  too,  on  board  the  Savannah  ? 

Q.  Did  you  hear  the  direction  as  to  the  port  the  Savannah 
should  sail  to  after  the  prize  crew  were  put  on  board  ? 

A.  To  New  York  1  understood  it  was  ordered.  I  was  told 
that  she  was  ordered  to  New  York. 

(Objected  to  as  incompetent.) 

Q.  In  respect  to  the  Perry,  what  course  did  she  take  after 
you  were  taken  on  board? 

A.  As  informed  by  the  captain,  next  day,  she  was  bound  to 
Florida,  to  Fernandina,  to  blockade. 

Q.  When  did  she  fall  in  with  the  Minnesota? 

A.  About  the  third  day  after  our  capture,  I  think ;  lying 
8  or  10  miles  off  Charleston. 


OF   THE    SCHOONER   SAVANNAH.  31 

Q.  In  the  open  ocean  ?     A.  Yes,  sir. 

Q.  You  were  all  transferred  to  the  Minnesota  ? 

A.  Yes,  sir. 

Q.  What  did  the  Minnesota  do  ? 

A.  We  were  confined  on  board  the  Minnesota. 

Q.  When  was  it  you  went  on  board  the  Minnesota  ? 

A.  I  think  on  Wednesday  or  Thursday ;  I  forget  which. 

Q.  You  were  captured  on  Monday  night  ? 

A.  Yes,  sir,  the  3d  of  June,  and  I  think  it  was  on  Wednes 
day  or  Thursday  (I  do  not  know  which)  we  went  on  board  the 
Minnesota. 

Q.  How  long  did  you  lie  off  Charleston  ?    A.  Several  days. 

Q.  At  anchor  ? 

A.  The  ship  was  under  way  sometimes,  steering  off  and  on 
the  coast. 

Q.  How  far  from  Charleston  ? 

A.  I  think  in  8  or  9  fathoms  of  water,  8  or  10  miles  from 
the  land. 

Q.  Where  did  the  Minnesota  proceed  from  there  ? 

A.  To  Hampton  Roads. 

Q.  Were  all  the  persons  you  have  identified  here  on  board 
the  Minnesota  ? 

A.  Yes,  sir. 

Q.  State  the  facts  as  to  transfer  from  ship  to  ship  ? 

A.  We  were  transferred  from  the  Savannah  to  the  Perry ; 
from  the  Perry  to  the  Minnesota ;  from  the  Minnesota  to  the 
Harriet  Lane. 

Q.  All  of  you? 

A.  Yes,  sir ;  all. 

Q.  State,  as  near  as  you  can,  where,  at  Hampton  Roads, 
the  Minnesota  came  ? 

A.  She  came  a  little  to  the  westward  of  the  Rip  Raps ;  I 
suppose  SewalPs  Point  was  bearing  a  little  to  the  west  of  us, 
f  or  £  a  mile  to  the  west  of  us  ;  I  should  judge  west  by  south. 
I  am  well  acquainted  there.  We  call  it  2±  miles  from  Old 
Point  Comfort. 

Q.  What  was  the  nearest  port  of  entry  to  where  you  were 
anchored?  A.  Norfolk,  Ya. 

Q.  How  far  from  Fortress  Monroe  ? 

A.  A  mile,  or  1-J-  or  1J — not  a  great  distance. 

Q.  How  long  did  you  lie  there  before  you  were  transferred 
to  the  Harriet  Lane  ? 

A.  Several  days.  I  did  not  keep  any  account.  Some  two 
or  three  days. 

Q.  And  you  were  brought  to  this  port  in  the  Harriet  Lane  ? 

A.  Yes,  sir. 

Q.  And  all  the  prisoners  you  identified  to-day  were  brought 
here? 


32  TRIAL  OF  THE  OFFICERS  AND  CREW 

A.  Yes,  sir,  to  the  Navy  Yard,  Brooklyn ;  there  transferred 
to  a  ferry-boat  and  brought  to  the  Marshal's  office  here. 

Mr.  Evarts:  If  the  Court  please,  we  deem  it  a  regular  and 
necessary  part  of  our  proof  to  show  the  manner  of  the  seizure 
of  this  vessel  by  the  U.  S.  ship  Perry ;  to  show  that  it  was  a 
forcible  seizure,  by  main  force,  and  against  armed  forcible  re 
sistance  of  this  vessel.  Besides  being  almost  a  necessary  part 
of  the  circumstances  of  the  seizure,  it  is  material  as  character 
izing  the  purpose  of  this  cruise,  and  the  depth  and  force  of  the 
sentiment  which  led  to  it,  and  the  concurrence  and  cohesion  of 
the  whole  ship's  crew  in  it. 

The  Court :  What  necessity  for  that  after  what  has  been 
conceded  on  the  other  side  ? 

Mr.Evarts:  They  concede  that  she  was  seized;  but  do 
they  concede  that,  as  against  all  those  accused,  the  crime  of 
piracy  is  proved — the  concurrence  of  the  whole — and  that  the 
only  question  is,  whether  the  protection  claimed  from  what  is 
called  the  privateering  character  of  the  vessel  shields  them  ? 

The  Court :   I  understand  the  admission  to  be  broad. 

Mr.  Evarts :  If  as  broad  as  that,  that  there  is  no  distinc 
tion  taken  between  the  concurrence  of  these  men,  it  is  suffi 
cient. 

Mr.  Brady :   We  have  said  nothing  about  that  ? 

The  Court :  So  far  as  the  capture  is  concerned,  that  does 
not  enter  into  any  part  of  the  crime,  and  has  no  materiality  to 
the  elements  of  this  case  at  all.  The  force  that  may  enter  into 
the  crime  is  in  the  capture  by  the  privateer  of  the  Joseph.  I 
do  not  want  to  confound  this  case  by  getting  off  on  collateral 
issues ;  and  so  far  as  concerns  the  animus,  or  intent,  I  under 
stand  it  to  be  admitted. 

Mr.  Evarts :  My  learned  friends  say  that  on  this  point  they 
have  not  said  anything  as  to  the  jointness  or  complicity  of  the 
parties  in  this  crime.  Now  I  think  your  honor  would  under 
stand  that  a  concurrence  in  resistance,  by  force,  of  an  armed 
vessel  of  the  United  States,  bearing  the  flag  of  the  United 
States,  and  undertaking  to  exercise  authority  over  it,  would 
show  their  design. 

The  Court :   Have  you  any  question  as  to  the  facts  ? 

Mr.  Evarts :  The  Government  have  all  the  facts.  Stripped 
of  all  the  circumstances  that  attended  the  actual  transaction,  it 
would  appear  as  if,  when  the  brig  Perry  came  along,  these 
people  at  once  surrendered,  gave  up,  and  submitted  quietly  and 
peacefully.  As  against  that,  we  submit  the  Government  should 
protect  itself  by  proving  the  actual  transaction. 

Mr.  Brady :  One  thing  is  certain,  that  if  these  men  com 
mitted  any  offence  whatever,  it  was  committed  before  they  saw 
the  Perry ;  it  was  an  act  consummated  and  perfect,  whatever 


OF   THE    SCHOONER    SAVANNAH.  33 

may  have  been  its  legal  character,  and  whatever  may  have 
been  the  consequences  which  the  law  would  attach  to  it.  The 
proof  of  the  capture  of  the  Savannah  by  the  Perry  is  in  no  way 
relevant,  except  in  proving  jurisdiction,  for  which  purpose  alone 
Is  it  of  any  importance  that  it  should  be  mentioned  here.  And 
whether  the  capture  was  effected  after  a  chase,  or  without  one, 
against  resistance,  or  by  the  consent  of  the  persons  to  that  from 
which  they  could  not  escape,  is  of  no  possible  consequence  in 
/any  aspect  of  the  case.  Whether  there  was  firing  or  armed 
resistance  can  make  no  difference.  It  cannot  bear  on  the  ques 
tion  whether  all  the  defendants  are  responsible  for  the  acts  of 
each  other,  like  conspirators.  It  may  be,  as  the  counsel  for  the 
prosecution  holds,  that  when  you  show  they  did  set  out  on  a 
common  venture  each  became  the  agent  of  the  other.  That 
may  be,  and  they  must  take  the  responsibility  of  trying  the 
case  on  such  a  theory  of  the  law  as  they  think  proper.  We 
would  not  feel  any  hesitation  in  saying  they  all  acted  with  a 
common  design,  only  that  there  are  some  of  the  prisoners  that 
we  have  had  no  communication  with,  and  it  may  be  that  some 
of  them  went  on  board  without  knowing  what  the  true  charac 
ter  of  the  enterprise  was.  It  is  sufficient  now  to  object  that  the 
question,  whether  there  was  resistance  or  not,  after  the  Perry 
came  up,  is  of  no  consequence  in  deciding  the  question  of 
whether  the  men  are  responsible. 

Mr.  Evarts :  My  learned  friend  is  certainly  right  in  saying 
that  the  crime  was  completed  when  the  Joseph  was  seized ;  but 
it  does  not  follow  that  the  proof  of  what  the  crime  was,  and 
what  the  nature  of  the  act  was,  is  completed  by  the  termination 
of  that  particular  transaction.  You  might  as  well  say  that  the 
fact  of  a  robbery  or  theft  has  been  completed  by  a  pickpocket 
or  highwayman  when  his  victim  has  been  despoiled  of  hjs 
property  ;  and  that  proof  of  the  crime  prohibits  the  Government 
from  showing  the  conduct  of  the  alleged  culprit  after  the  trans 
action — such  as  evading  the  officer,  running  away  from  or  re 
sisting  the  officer. 

The  Court:  You  do  not  take  into  account  the  adm'ssion  of 
the  counsel.  1  believe  the  subsequent  conduct  of  the  privateers, 
tf  the  intent  with  which  they  seized  and  captured  the  Joseph 
was  in  question,  would  be  admissible ;  but  when  this  is  admit 
ted  broadly  by  the  counsel  for  the  defendants,  I  do  not  see  why 
it  is  necessary  to  go  into  proof  with  a  view  to  make  out  that 
fact,  except  to  occupy  the  time  of  the  Court. 

Mr.  Evarts:  I  am  sure  your  honor  will  not  impute  to  us  any 
such  motive.  The  point  of  difficulty  is:  my  learned  friends  do 
not  admit  the  completeness  of  the  crime  by  all  the  prisoners, 
subject  only  to  the  answer  whether  the  privateering  character 
of  tiie  enterprise  protects  them.  The  moment  that  is  admitted, 
I  have  no  occasion  to  dwell  upon  the  facts. 

3 


34:  TRIAL   OF   THE   OFFICERS    AND   CREW 

The,  Court:  I  understand  the  admission  as  covering  all  the 
prisoners,  as  to  the  intent. 

Mr.  Brady :  That  she  was  fitted  out  as  a  privateer — the  en 
terprise,  and  capture  of  the  Joseph. 

Mr.  Smith :  Is  the  admission  that  all  were  engaged  in  a 
common  enterprise,  and  all  participators  in  the  fact  ? 

The  Court:  So  I  understand  the  admission,  without  any 
qualification. 

Mr.  Smith :  Do  we  understand  the  counsel  as  assenting  to 
the  Court's  interpretation  as  to  the  breadth  of  the  admission  ? 

Mr.  Brady :  There  is  no  misunderstanding  between  the 
Court  and  the  counsel ;  but  the  learned  gentlemen  seem  not  to 
be  satisfied  with  the  admission  we  made.  The  intent  is,  of 
course,  an  element  in  the  crime  of  piracy.  There  must  be  an 
animus furandi  established,  in  making  out  the  crime  ;  and  that 
is,  of  course,  a  question  about  which  we  have  a  great  deal  to 
say,  both  as  to  the  law  and  the  fact,  at  a  subsequent  stage  of 
the  case.  When  the  counsel  proposed  to  prove  the  firing  of 
cannon,  and  armed  resistance,  we  said — what  we  say  now — that 
we  do  not  intend  to  dispute  the  facts  proved  by  the  witness  on 
the  stand :  that  the  Savannah  was,  at  the  port  of  Charleston, 
openly  and  publicly,  without  any  secresy  (to  use  the  witness's 
language,  it  was  u  posted"),  fitted  out  as  a  privateer,  in  the 
service  of  the  Confederate  States,  under  their  flag,  and  by  their 
authority ;  that  it  was  so  announced,  and  that  these  men  were 
shipped  on  board  of  her  as  a  privateer.  All  that,  there  is  no 
intention  to  dispute  at  all ;  and,  of  course,  that  all  the  men  who 
shipped  for  that  purpose  were  equally  responsible  for  the  con 
sequences,  we  admit. 

Mr.  Evarts :  Do  you  admit  that  all  shipped  for  the  purpose  ? 
If  we  can  prove  their  conduct,  concurring  in  this  armed  resist 
ance,  then  I  show  that  they  were  not  there  under  any  deception 
about  its  being  a  peaceable  mercantile  transaction.  I  may  be 
met  by  the  suggestion  that,  so  far  as  the  transaction  disclosed 
about  the  Joseph  is  concerned,  there  was  not  any  such  depth  of 
purpose  in  this  enterprise  as  would  have  opposed  force  and 
military  power  in  case  of  overhauling  the  vessel.  It  would 
seem  to  me,  with  great  respect  to  the  learned  Court,  that  when 
the  facts  of  the  transaction  can  be  brought  within  very  narrow 
compass,  as  regards  time,  it  is  safer  that  we  should  disclose  the 
facts  than  that  admissions  should  be  accepted  by  the  Court  and 
counsel  when  there  is  so  much  room  for  difference  of  opinion 
as  to  the  breadth  of  the  admission.  We  may  run  into  some 
misunderstanding  or  difference  of  view  as  to  how  far  the  actual 
complicity  of  these  men,  or  the  strength  of  their  purpose  and 
concurrence  in  this  piratical  (as  we  call  it)  enterprise,  was 
carried. 


OF   THE    SCHOONER    SAVANNAH.  35 

Mr.  Lord:  If  your  honor  will  permit,  it  appears  to  me  that 
this  is  exceedingly  plain.  The  notoriety  and  equipment  of  the 
vessel  —  all  the  character  of  the  equipment  —  the  sailing  to 
gether  —  all  that  is  covered  by  the  admission  of  my  friend,  Mr. 
Srady.  So  far  as  to  there  being  a  joint  enterprise  up  to  the 
time  "of  the  capture  of  the  Joseph,  it  seems  to  me  there  is 
nothing  left.  Now,  what  do  they  wish?  They  wish  to  slmw. 
what  is  in  reality  another,  additional,  and  greater  crime,  after 
this  capture  of  the  Joseph,  for  which  we  alone  are  indicted,  as 
they  say,  for  the  purpose  of  showing  that  we  assented  to  this,. 
which  we  went  out  to  do. 

Your  honor  knows  that,  if  we  have  any  fact  to  go  to  the- 
jury,  they  are  getting  into  this  case  a  crime  of  a  very  different 
character  and  of  a  deeper  dye,  for  which  they  have  made  no- 
charge,  and  which  does  not  bear  upon  that  which,  if  a  crime 
at  all,  was  consummated  in  the  capture  of  the  Joseph  —  the 
only  crime  alleged  in  the  indictment.  I  submit  that  they  can 
not,  with  a  view  of  showing  complicity  'in  a  crime  completed,, 
show  that  the  next  day  the  men  committed  another  crime  of  a 
deeper  character.  I  think  it  is  not  only  irrelevant,  but  highly- 
objectionable. 

The  Court  :  We  are  of  opinion  that  this  testimony  is  super 
fluous,  and  superseded  by  the  admission  of  the  counsel.  I  un 
derstand  the  admission  of  the  counsel  to  be,  that  the  vessel 
was  fitted  out  and  manned  by  common  understanding  on  the 
part  of  all  the  persons  on  board,  as  a  privateer  ;  and  that  in 
pursuance  of  that  design  and  intent,  and  the  completion  of  it, 
the  Joseph  was  captured.  That  is  all  the  counsel  can  ask. 
That  shows  the  intent  —  all  that  can  be  proved  by  this  subse 
quent  testimony  ;  and  unless  there  is  some  legitimate  purpose 
for  introducing  this  testimony,  which  might,  of  itself,  go  to- 
show  another  crime,  we  are  bound  to  exclude  it. 

Mr.  Evarts:  We  consider  the  decision  of  your  honor  rests 
upon  that  view  of  the  admission,  and  we  shall  proceed  upon 
that  as  being  the  admission. 

The  Court:  Certainly  ;  if  anything  should  occur  hereafter 
that  makes  it  necessary,  or  makes  it  a  serious  point,  the  Court 
will  look  into  it. 


resumed  by  District  Attorney  Smith. 

Q.  You  stated,  I  believe,  that  it  was  after  8  o'clock  in  the 
evening  when  the  boat  of  the  Perry  came  to  the  Savannah  ? 

A.   Yes,  sir. 

Q.  Who  was  in  that  boat? 

A.  There  was  a  gentleman  from  .the  Perry  ;  I  do  not*know 
that  I  ever  saw  him  before;  an  officer  and  boat'a  crew,  —  I  sup 
pose  15  or  20  men. 


36  TRIAL   OF   THE   OFFICERS    AND   CREW 

Q.  One  of  the  United  States  officers  ? 

A.  Yes,  sir ;  some  officer  from  the  brig  Perry  boarded  us,  and 
^demanded  us  to  go  on  board  the  Perry. 

Q.  Where  were  the  crew  of  the  Savannah  at  the  time  the 
<7boat  came  from  the  Perry?  A.  All  on  deck,  sir. 

Q.  At  the  time  the  Savannah  was  running  down  the  Joseph, 
what  time  was  it  ? 

A.  We  got  up  to  the  Joseph  somewhere  late  in  the  fore 
noon,  as  near  as  my  memory  serves  me. 

Q.  I  want  to  know  whether  all  the  officers  and  crew  of  the 
Savannah  were  on  duty,  or  not,  at  the  time  you  were  running 
<down  ? 

A.  Yes,  sir ;  there  were  some  walking  the  deck,  and  some 
lying  down,  right  out  of  port ;  the  men,  after  taking  a  drink, 
vdid  not  feel  much  like  moving  about ;  they  were  all  on  deck. 

Q.  Was  there  any  refusal  to  perform  duty  on  the  part  of 
•any  one?  A.  No,  sir ;  all  did  just  as  they  were  told. 

Q.  How  was  the  Savannah  armed,  if  armed  at  all  ? 

A.  I  never  saw  all  her  arms,  sir. 

Q.  What  was  there  on  deck  ?     A.  A  big  gun  on  deck. 

$•  What  sort  of  a  gun  ? 

A.  They  said  an  eighteen-pounder  ;  I  am  no  judge  ;  I  never 
saw  one  loaded  before. 

Q.  A  pivot  gun? 

A.  No,  sir,  not  much  of  a  pivot.  They  had  to  take  two  or 
three  handspikes  to  round  it  about. 

Q.  It  was  mounted  on  a  carriage,  the  same  as  other  guns  ? 

A.  Yes,  sir. 

Q.  With  wheels  ? 

A.  I  believe  so;  I  took  no  notice  of  the  gun. 

Q.  Reflect,  and  tell  us  how  the  gun  was  mounted  ? 

A.  It  was  mounted  so  that  it  could  be  altered  in  its  posi- 
'tion  by  the  aid  of  handspikes ;  it  could  be  swung  by  the  use 
•of  handspikes. 

Q.  The  gun  could  be  swung  on  the  carriage  without  mov 
ing  the  carriage  ? 

A.  I  do  not  know  that  part  of  it ;  I  know  the  men  com 
plained  that  moving  the  gun  was  hard  work. 

Q.  What  other  arms  had  you  on  board  ? 

A.  I  saw  other  arms  on  board, — pistols,  I  believe,  and  cut 
lasses. 

Q.  How  many  pistols  did  you  see  ? 

A.  I  saw  several ;  I  do  not  know  how  many. 

Q.  About  how  many  cutlasses  ? 

A.  I  cannot  say  how  many ;  I  saw  several,  such  as  they 
"were — cutlasses  or  knives,  such  as  they  were. 

Q.  Where  were  the  cutlasses? 


OF   THE    SCHOONER    SAVANNAH.  ST 

A.  Those  were  in  the  lockers  that  I  saw;  I  never  saw  them 
until  Monday  noon,  when  we  ran  down  the  Joseph  ;  I  ksaw 
them  then. 

Q.  Where  were  they  then  ? 

A.  I  saw  them  in  the  lockers  that  lay  in  the  cabin. 

Q.  When  the  Perry's  boat  came  to  you  where  were  they  ?' 

A.  Some  out  on  the  table,  and  some  in  the  lockers. 

Q.  When  you  captured  the  Joseph  where  were  they  ? 

A.  I  think  there  were  some  out  on  the  table,  and  about  the 
cabin  ;  the  pistols,  too  ;  but  there  were  none  used. 

Q.  Were  any  of  the  men  armed  ? 

A.  No,  sir ;  I  saw  none  of  our  men  armed,  except  in  their 
belt  they  might  have  a  sheath  knife. 

Q.  Where  were  all  hands  when  you  captured  the  Joseph,, 
in  the  forenoon  of  Monday  ? 

A.  All  on  deck,  sir  ;  there  might  be  one  or  two  in  the  fore 
castle,  but  most  on  deck,  some  lying  down,  and  some  asleep. 

Q.  What  size  is  the  Savannah  ? 

A.  I  think  in  the  neighborhood  of  50  to  60  tons. 

Q.  What  is  the  usual  crew  for  sailing  such  a  vessel,  for  mer 
cantile  purposes  ? 

A.  I  have  been  out  in  such  a  boat  with  four  men  and  a. 
boy,  besides  myself;  that  was  all-sufficient. 

Q.  Where  did  you  run  to  ? 

A.  I  ran  to  Havana,  and  to  Key  West,  with  the  mails, 
and  returned  again  in  a  pilot  boat  of  that  size,  with  four  mem 
and  a  boy,  some  years  ago. 

Q.  Was  the  Savannah  in  use  as  a  pilot  boat  before  that  ex 
pedition? 

A.  Yes;  that  is  what  she  was  used  for. 

Q.  Do  you  know  where  the  Savannah  was  owned  ? 

A.  I  believe  she  was  owned  in  Charleston. 

Q.  How  long  have  you  known  her  ? 

A.  Two  or  three  years,  as  a  pilot  boat. 

Q.  Do  you  know  her  owners  ?     A.  I  know  one  of  them.. 

Q.  What  was  his  name  ?     A.  Mr.  Lawson. 

Q.  Is  he  a  citizen  of  the  United  States  ? 

A.  Yes,  I  believe  so. 

Cross-examined  by  Mr.  Larocque. 

Q.  In  speaking  of  your  meeting  with  the  Joseph,  you  spoke 
of  a  conversation  that  took  place  between  Captain  Baker  and 
Captain  Meyer,  after  Captain  Meyer  came  on  board  the  Savan 
nah.  Do  you  not  recollect  that  before  that,  when  Captain 
Meyer  was  still  on  the  deck  of  the  Joseph,  Captain  Baker  having 
called  him  to  come  on  board  the  Savannah,  and  bring  his  papers^ 


'38  TRIAL    OF   THE    OFFICERS    AND    CREW 

he  asked  Captain  Baker  by  what  authority  he  called  on  him  to 
do  that? 

A.  I  think  this  conversation  occurred  on  board  the  Sa- 
Tannah. 

Q.  The  way  you  stated  was  this:  that  Captain  Baker,  on 
board  the  Savannah,  stated  to  Captain  Meyer  that  he  must 
consider  himself  and  crew  prisoners,  and  his  vessel  a  prize  to 
the  Confederate  States  ?  A.  Yes,  sir. 

Q.  That  was  on  board  the  Savannah?     A.  It  was. 

Q.  But  do  you  not  recollect  that  before  that,  when  Captain 
Baker  called  on  the  Captain  of  the  Joseph  to  come  on  board 
the  Savannah,  and  bring  his  papers,  Captain  Meyer  asked  by 
what  authority  Captain  Baker  called  on  him  to  do  that  ? 

A.  I  do  not  bear  that  in  mind.  I  cannot  vouch  for  that. 
I  do  not  exactly  recollect  those  words,  I  think  the  proposition 
was  only  made  when  he  was  on  board  the  Savannah,  but  pro 
bably  it  might  have  been  made  before. 

Q.  Did  Captain  Meyer  bring  his  papers  with  him? 

A.  I  do  not  know.     I  did  not  see  them. 

Q.  You  spoke  of  having  met  another  vessel  after  that,  and 
before  you  fell  in  with  the  rerry — I  mean  the  Berkshire — you 
spoke  of  her  as  a  Brirish  vessel  ? 

A.  Yes.     We  did  not  speak  her. 

Q.  How  did  you  ascertain  the  fact  that  she  was  a  British 
vessel  ? 

A.  We  could  tell  a  British  vessel  by  the  cut  of  her  sails. 

Q.  Was  the  Berkshire,  so  far  as  you  observed,  an  armed  or 
an  unarmed  vessel  ? 

A.  I  think  she  was  an  unarmed  vessel.  I  considered  she 
had  been  at  some  of  the  Southern  ports,  and  had  been  or 
dered  off. 

Q.  She  was  a  merchant  vessel?     A.  Yes. 

Q.  Which  you,  from  your  seamanlike  knowledge,  thought 
to  be  a  British  vessel  ? 

A.  Yes ;  and  I  think  that  the  words,  "  Berkshire,  of  Liver 
pool,"  were  on  her  stern. 

Q.  Did  you  read  the  name  on  the  stern?     A.  I  think  I  did. 

Q.  You  had  fallen  in  with  the  Joseph,  one  unarmed  vessel, 
and  had  made  her  a  prize,  and  her  crew  prisoners?  A.  Yes. 

Q.  You  fell  in  with  the  Berkshire,  another  unarmed  vessel, 
and  passed  under  her  stern  and  did  not  interfere  with  her. 
What  was  the  reason  of  that,  difference? 

A.  We  had  no  right  to  interfere  with  her. 

Q.  Why  not  ? 

A.  She  was  not  an  enemy  of  the  Confederate  Government. 
The  policy  we  were  going  on,  as  I  understood  it,  was  to  take 
Northern  vessels. 


OF   THE    SCHOONER    SAVANNAH.  39 

Q.  Then  you  were  not  to  seize  all  the  vessels  you  met 
•with  ? 

A.  No;  we  were  not  to  trouble  any  others  but  those  that 
were  enemies  to  the  Confederate  Government.  That  was  the 
orders  from  headquarters.  The  Captain  showed  no  disposition 
to  trouble  any  other  vessels. 

Q.  When  you  were  taken  on  board  the  Perry  were  you 
put  in  irons  ?  A.  Yes. 

Q.  "Where  were  those  irons  put  on.     Was  it  on  board  the 
Savannah,  or  after  you  were  put  on  board  the  Perry? 

A.  When  we  got  on  board  the  Perry. 

Q.  How  soon  after  you  went  on  board  the  Perry  were 
those  irons  put  on  ? 

A.  As  soon  as  our  baggage  was  searched.  We  were  put  in 
the  between-decks  on  board  the  Perry  and  irons  put  on  us  im 
mediately  after  we  were  searched. 

Q.  Were  you  in  irons  when  you  were  transferred  from  the 
Perry  to  the  Minnesota  ?  A.  No,  sir. 

Q.  When  were  the  irons  taken  off? 

A.  On  board  the  Perry,  when  we  were  going  into  the  boat 
to  go  on  board  the  Minnesota. 

Q.  When  you  were  on  board  the  Minnesota  were  your  irons 
put  on  again  ?  A.  They  were,  at  night. 

Q.  Was  that  the  practice — taking  them  off  in  the  day,  and 
putting  them  on  at  night  ? 

A.  Yes ;  we  were  not  ironed  at  all  on  that  day  on  board  the 
Minnesota. 

Q.  When  you  arrived  in  Hampton  Roads, — you  have 
described  the  place  where  the  Minnesota  lay,  about  half  a  mile 
from  the  Rip  Raps  ? 

A.  Fes.  (A  chart  was  here  handed  to  witness,  and  he 
marked  on  it  the  position  of  the  Minnesota  off  Fortress 
Monroe.) 

Q.  As  I  understand  it,  you  have  marked  the  position  of  the 
anchorage  of  the  Minnesota  a  little  further  up  into  the  land 
than  on  a  direct  line  between  the  Rip  Raps  and  Fortress  Mon 
roe?  A.  Yes,  sir. 

Q.  You  were  then  taken  on  board  the  Harriet  Lane,  from 
the  Minnesota?  A.  Yes. 

Q.  Where  did  the  Harriet  Lane  lie  when  you  were  taken  on 
board  of  her  ? 

A.  She  was  further  up  into  the  Roads,  about  half  a  mile 
from  the  Minnesota,  westward.  (Witness  marked  the  position 
of  the  Harriet  Lane  on  the  chart.) 

Q.  You  are  familiar  with  these  Roads  ? 

A.  Yes,  sir ;  for  years. 

Q.  You  know  the  town  of  Hampton?     A.  Yes. 


40  TRIAL    OF   THE    OFFICERS    AJSTD    CREW 

A.  And  the  college  there?     A.  Yes. 

Q.  How,  with  reference  to  the  college  at  Hampton,  did  the 
Harriet  Lane  lie  ? 

A.  The  college  at  Hampton  appeared  1ST.  N.  W.,  and  at  a 
distance  of  a  mile  and  a  quarter,  or  a  mile  and  a  half. 

Q.  How  were  you  taken  from  the  Minnesota  on  board  the 
Harriet  Lane  ?  A.  The  ship's  crew  took  us  in  a  boat. 

Q.  In  one  trip,  or  more  trips  ? 

A.  We  all  went  in  one  of  the  ship's  boats. 

Q.  On  what  day  was  that  ? 

A.  I  do  not  bear  in  mind  exactly. 

Q.  Was  the  Harriet  Lane  ready  to  sail  when  you  were  taken 
on  board  of  her? 

A.  Yes ;  she  sailed  in  a  few  hours  afterwards. 

Q.  She  had  already  had  steam  up  ? 

A.  Yes ;  they  were  waiting  for  the  commander,  who  was  on 
shore. 

Q.  How  long  were  you  lying  on  board  the  Minnesota  after 
your  arrival  there  ? 

A.  I  think  we  were  transferred  from  the  Minnesota  on 
Saturday,  the  20th  of  June. 

Q.  How  long  had  you  been  lying  on  board  the  Minnesota, 
in  Hampton  Roads  ? 

A.  Two  or  three  days ;  I  do  not  recollect  exactly. 

Q.  You  have  been  a  seafaring  man  a  good  many  years  ? 

A.  I  have  been  about  34  years  at  it? 

Q.  In  the  capacity  of  master  and  mate?    A.  Yes,  sir. 

Q.  As  pilot,  also  ? 

A .  I  have  run  pilot  on  all  the  coasts  of  America. 

Q.  How  often  had  you  been  in  Hampton  Roads  ? 

A.  Many  a  time.  I  sailed  a  vessel  in  and  out  in  the  West 
India  trade. 

Q.  How  familiar  are  you  with  the  localities  about  there  ? 

A.  I  am  so  familiar  that  I  could  go  in,  either  night  or  day, 
or  into  Norfolk. 

Q.  Do  you  know  the  ranges,  bearings,  distances,  depth  of 
water,  and  all  about  it  ? 

A.  Yes ;  and  could  always  find  my  way  along  there. 

Q.  (By  a  Juror.)  I  understood  you  to  say  that  the  Savan 
nah  carried  both  the  American  flag  and  the  Confederate  flag  ? 

A.  Yes. 

Q.  And  that  the  American  flag  was  flying  when  you  were 
bearing  on  the  Joseph  ?  A.  Yes. 

Q.  What  was  the  object  of  sailing  under  that  flag  ? 

A.  I  presume  our  object  was  to  let  her  know  that  we  were 
coming ;  and,  no  doubt,  the  vessel  heaved  to  for  us.  Suddenly 
enough  we  raised  the  Confederate  flag. 


OF   THE   SCHOONER    SAVANNAH.  41 

Q.  Then  it  was  deception  ? 

A.  Of  course;  that  was  our  business — tbat  was  as  near  as  I 
understood  it. 

Williar/i  JIabeson  called,  and  sworn.  Examined  by  District 
Attorney  Smith. 

Q.  You  are  the  Deputy  Collector  of  the  port  of  Philadel 
phia  ?  A.  Yes,  sir. 

Q.  Have  you  charge  of  the  register  of  vessels  there  ? 

A.  Yes. 

Q.  Did  you  take  this  certified  copy  of  the  register  of  the 
Joseph  from  the  original  book  ? 

A.  It  is  copied  from  the  original  book. 

Mr.  Evarts:  It  is  a  temporary  register,  dated  26th  January, 
1861,  showing  the  building  of  the  vessel,  and  the  fact  of  her 
owners  being  citizens  of  the  United  States. 

Q.  Who  was  the  master  of  the  vessel  then  ? 

A.  George  H.  Cables. 

Q.  Do  you  know  who  was  the  master  afterwards  ? 

A.  Yes;  I  saw  him  afterwards.  That  man  (pointing  to 
Captain  Meyer)  is  the  man.  He  was  endorsed  as  master  after 
the  issuing  of  this  register. 

By  Mr.  Evarts  : 

Q.  And  you  recollect  this  person  being  master  of  the  vessel 
mentioned  in  that  register  ?  A.  I  do,  sir. 

George  Thomas  called,  and  sworn.     Examined  by  District 
Attorney  Smith. 

Q.  Where  do  you  reside?    A.  Quincy,  Massachusetts. 

Q.  What  is  your  business  ?     A.  Shipbuilder. 

Q.  Do  you  know  the  brig  Joseph  ? 

A.  I  have  known  her ;  I  built  her. 

Q.  Where  did  you  build  her  ?     A.  At  Kockland,  Maine. 

Q.  Who  did  you  build  her  for? 

A.  For  Messrs.  Crocket,  Shaller,  Ingraham,  and  Stephen 
N.  Hatch— all  of  Kockland. 

Q.  Were  they  American  citizens  ? 

A.  They  were  all  American  citizens. 

Q.  What  was  the  tonnage  of  the  vessel  ? 

A.  About  177  tons.     She  was  a  hermaphrodite  brig. 

Q.  Look  at  this  description  in  the  register  and  say  whether 
it  was  the  vessel  you  built. 

A.  I  have  no  doubt  that  this  is  the  vessel. 

George  H.  Cables  called,  and  sworn.     Examined  by  District 

Attorney  Smith. 
Q.  Where  do  you  reside  ?    A.  Rockland,  Maine. 


42  TRIAL    OF   THE   OFFICERS    AND   CREW 

Q.  Look  at  the  description  of  the  brig  Joseph,  in  this 
register,  and  see  if  you  know  her  ?  A.  Yes,  sir. 

Q.  You  were  formerly  master  of  the  vessel  ?     A.  Yes,   sir. 
Q.  Who  was  the  master  that  succeeded  you? 
A.  I  put  Captain  Meyer  in  charge  of  her. 
Q.  You  recognize  Mr.  Meyer  here  ?     A.  Yes,  sir. 
Q.  Did  you  own  any  part  of  that  vessel? 
A.  I  bought  a  part  of  it,  and  gave  it  to  my  wife. 
A.  Is  your  wife  an  American-born  woman  ?     A.  She  is. 
Q.  Where  does  she  reside  ?     A.  In  Rockland. 
Q.  Do  you  know  any  others  of  the  part-owners  of  her  ? 
A.  Yes ;   my  brother  and  myself  bought  a  three-eighth 
interest. 

Q.  Where  does  your  brother  reside  ?     A.  In  Kockland. 
Q.  Is  he  an  American-born  citizen  ?     A.  Yes. 
Q.  Are  you  an  American  citizen  ?     A.  Yes. 
Q.  You  spoke  of  s  nne  other  owner? 
A.  Yes  ;  Messrs.  Hatch  and  Shaler. 

Are  they  American  citizens  ?     A.  Yes. 

Did  you  know  all  the  owners?     A.  Yes. 

Were  they  all  American  citizens?     A.  Yes. 

When  did  you  put  Meyer  in  charge  of  the  vessel? 
A.  On  the  26th  or  27th  of  April  last. 
Q.  Where?     A.  In  Philadelphia. 
Q.  Where  did  you  sail  from? 

A.  From  Cardenas,  in  Cuba,  on  a  round  charter  which  I 
made  at  Cardenas  myself  with  J.  L.  Morales  &  Co.,  consigned 
to  S.  H.  Walsh  &  Co. 

Q.  The  ownership  remained  the  same  ?     A.  Just  the  same. 
Q.  Was  there  any  change  up  to  the  time  of  her  capture  ? 
A.  No,  sir. 

Thies  N.  Meyer,  examined  by  District  Attorney  Smith. 

Q.  You  were  Captain  of  the  brig  Joseph  at  the  time  of 
lier  capture  ?  A.  I.  was. 

Q.  What  American  port  had  you  sailed  from  ? 

A.  Philadelphia. 

Q.  Where  did  you  go  to  ?     A.  Cardenas,  in  Cuba. 

Q.  What  port  did  you  sail  for  from  Cardenas  ? 

A.  Back  to  Philadelphia. 

Q.  What  cargo  had  you?     A.  Sugar. 

Q.  By  whom  was  it  owned  ? 

A.  By  J.  M.  Morales  &  Co.,  of  Cardenas. 

Q.  When  did  you  leave  the  port  of  Cardenas  ? 

A.  28th  May,  1861. 

Q.  And  you  were  captured  by  the  Savannah  on  the  3d 
June?  A.  Yes. 


OF   THE    SCHOONER   SAVANNAH.  4:3 

Q.  State  the  particulars  of  the  capture  by  the  Savannah  of 
the  brig  Joseph  from  the  time  she  first  hove  in  sight  ? 

A.  Mr.  Bridges,  my  mate,  called  me  some  time  between 
6  and  7  o'clock  in  the  morning,  and  told  me  there  was  a  sus 
picious  looking  vessel  in  sight,  and  he  wished  me  to  look  at 
her.  I  went  on' deck  and  asked  him  how  long  he  had  seen  her, 
he  told  me  he  had  seen  her  ever  since  day-light.  When  I  took 
the  spy-glass  and  looked  at  her  I  found  that  she  was  a  style  of 
vessel  that  we  do  not  generally  see  so  far  off  as  that.  I  hauled 
my  vessel  to  E.  N.  E.,  arid  when  I  found  that  she  was  gaining  on 
me  I  hauled  her  E.  by  N.  and  so  until  she  ran  E.  About  8 
o'clock  she  came  near  enough  for  me  to  see  a  rather  nasty  look 
ing  thing  amid-ships,  so  that  I  mistrusted  something ;  but  when 
I  saw  the  American  flag  hanging  on  her  main  rigging,  on  her 
port  side,  1  felt  a  little  easier — still,  I  rather  mistrusted  some 
thing,  and  kept  on  till  I  found  I  could  not  get  away  at  all. 
When  she  got  within  half  a  gun  shot  of  me  I  heaved  my  ves 
sel  to,  hoping  the  other  might  be  an  American  vessel. 

Q.  Had  she  any  gun  on  board? 

A.  I  saw  a  bi^  gun  amid-ships,  on  a  pivot. 

Q.  How  far  off  was  she  when  you  saw  the  gun  ? 

A.  About  a  mile  and  a  half  or  two  miles ;  I  could  see  it 
with  the  spy -glass  very  plainly. 

Q.  Can  you  give  us  the  size  of  the  gun  ? 

A.  Not  exactly;  I  belie ve  it  was  an  old  eighteen  pound 
cannonade. 

Q.  How  was  it  mounted? 

A.  On  a  kind  of  sliding  gutter,  which  goes  on  an  iron  piv 
ot  ;  it  was  on  a  round  platform  on  deck,  so  that  it  could  be 
hauled  round  and  round. 

Q.  So  that  it  could  be  pointed  in  any  direction  ? 

A.  Yes,  in  any  direction.  After  she  came  up  alongside  of 
me,  Captain  Baker  asked  me  where  I  was  from,  and  where 
bound,  and  ordered  me  with  my  boat  and  papers  on  board  his 
vessel.  I  asked  him  by  what  authority  he  ordered  me  on  board, 
and  he  said,  by  authority  of  the  Confederate  States.  I  lowered 
my  boat  and  went  on  board  with  two  of  my  men.  When  I  got 
alongside,  Captain  Baker  helped  me  over  the  bulwarks,  or 
fence,  and  said  he  was  sorry  to  take  my  vessel,  but  he  had  to 
retaliate,  because  the  North  had  been  making  war  upon  them. 
I  told  him  that  that  was  all  right,  but  that  he  ought  to  do  it  under 
his  own  flag.  He  then  hoisted  his  own  flag,  and  ordered  a  beat's 
crew  to  go  on  board  the  brig.  Some  of  them  afterwards  re 
turned,  leaving  six  on  board  the  brig. 

Q.  Did  Captain  Baker  take  your  papers  ?     A.  Yes. 

Q.  Do  you  recognize  Captain  Baker  in  court  ? 

A.  Yes.    As  soon  as  they  secured  my  crew  they  hauled  the 


44:  TRIAL   OF   THE   OFFICERS    AND   CREW 

brig  on  the  other  tack,  and  stood  into  the  westward,  with  the 
privateer  in  company.  Captain  Baker  desired  me  to  ask  my 
mate  to  take  the  sun,  as  he  had  a  chronometer  on  board,  and 
the  privateer  had  not.  At  3  o'clock  the  privateer  stood  back  to 
find  out  the  longitude ;  while  so  doing  she  got  astern  of  the 
brig,  and  about  that  time  the  brig  Perry  hove  in  sight,  steering 
southward  and  eastward.  When  they  saw  the  brig  Perry  they 
hauled  the  privateer  more  on  the  wind,  because  she  would  go 
a  point  or  two  nearer  to  the  wind  than  the  brig  Joseph,  so  as 
to  cut  off  the  Perry  if  they  could.  They  went  aloft  a  good 
deal  with  opera  glasses,  to  find  out  what  she  was,  and  they 
made  her  out  to  be  a  merchant  vessel,  as  they  thought.  Then 
they  saw  the  Perry's  quarter  boats,  and  rather  mistrusted  her. 
They  backed  ship  and  stood  the  same  as  the  Perry.  The  Per 
ry  then  set  gallant  stern-sail,  and  kept  her  more  free,  because 
she  got  the  weather-gauge  of  the  privateer. 

Q.  At  the  time  of  the  capture  of  the  Joseph  by  the  Savan 
nah  did  you  observe  all  the  crew,  and  in  what  attitude  they 
were  on  deck  ? 

A.  I  saw  them  working  around  the  gun  and  hauling  at  it. 
Whether  it  was  loaded  or  not,  I  could  not  say. 

Q.  Were  any  of  the  men  armed  ? 

A.  None  at  that  time  that  I  know  of;  but  after  I  went  on 
board  I  saw  them  armed  with  a  kind  of  cutlass,  and  old-fash 
ioned  boarding-pistols ;  and  they  had  muskets  with  bayonets 
on. 

Q.  At  the  time  you  left  your  vessel  for  the  Savannah,  in 
what  attitude  were  the  men  on  board  the  Savannah  ? 

A.  They  were  all  around  on  deck.  Perhaps  half  of  them 
were  armed. 

Q.  How  was  the  gun  pointed  ? 

A.  The  gun  was  pointing  toward  the  brig. 

Q.  Who  were  about  the  gun  ? 

A.  Before  I  went  on  board  I  saw  that  a  man  was  stationed 
beside  the  gun ;  I  could  not  say  which  of  them  it  was. 

Q.  What  crew  had  you  ? 

A.  I  had  four  men,  a  cook,  and  mate. 

Q.  Were  they  armed?     A.  No,  sir. 

Q.  Were  you  armed  ? 

A.  I  had  one  old  musket  that  would  go  off  at  half-cock. 

Q.  Was  there  any  gun  on  board  your  vessel  ? 

A.  None  except  that. 

Q.  How  many  men  did  you  see  on  the  deck  of  the  Savan 
nah  ?  A.  Some  16,  or  18,  or  20. 

Q.  Were  you  transferred  to  the  Perry  from  the  Savannah? 

A.  Yes. 

Q.  And  from  the  Perry  to  the  Minnesota?     A.  Yes. 


OF   THE    SCHOONER    SAVANNAH.  45 

Q.  And  from  the  Minnesota  to  the  Harriet  Lane  ? 

A.  No  ;  to  the  Savannah.  I  came  to  New  York  in  the  Sa 
vannah. 

Q.  Then  the  Savannah  sailed  to  New  York  before  the  Har 
riet  Lane  did  ?  A.  Yes,  sir. 

Q.  Where  were  you  born  ? 

A.  In  the  Duchy  of  Holstein,  under  the  flag  of  Denmark. 

Q.  You  have  been  naturalized  ?     A.  Yes. 

Q.  In  what  Court  ? 

A.  In  the  Court  of  Common  Pleas,  New  York. 

Q.  When  did  you  come  to  this  country  ? 

A.  In  the  winter  of '47. 

Q.  Did  you  hail  from  here  ever  since  ? 

A.  I  hailed  from  almost  all  over  the  States.  I  never  had 
a  home  until  lately.  I  have  hailed  from  here  about  a  year. 
Before  that,  wherever  my  chest  was  was  my  home. 

Q.  You  have  resided  in  the  United  States  ever  since  you 
were  naturalized  ? 

A.  Yes,  sir ;  I  have  never  been  out  of  it  except  on  voy 
ages. 

Q.  You  have  continued  to  be  a  citizen  of  the  United 
States  since  you  wrere  naturalized  ?  A.  Yes. 

Q.  And  to  reside  in  the  United  States  ?     A.  Yes. 

Q.  Do  you  recollect  the  names  of  your  crew  ? 

A.  No,  sir  ;  none  except  the  mate  ;  his  name  was  Bridges. 

Q.  Is  he  here  ?     A.  Yes. 

Q.  When  the  Joseph  was  seized  by  the  Savannah,  what 
was  done  with  the  Joseph  ? 

A.  She  was  taken  a  prize,  a  crew  of  six  was  put  on  board 
of  her,  and  they  started  with  her  to  westward. 

Q.  What  became  of  the  rest  of  the  men  of  the  Joseph  be 
sides  yourself? 

^  A.  They  were  carried  on  with  the  Joseph  ;  I  continued  on 
the  Savannah. 

Q.  When  did  you  first  observe,  on  board  the  Savannah, 
that  the  American  flag  was  flying  ? 
£J  A.  When  she  was  within  about  a  mile  and  a  half  off, 

Q.  At  what  time,  in  reference  to  her  distance  from  you, 
did  she  run  up  the  Confederate  flag  ? 

A.  The  Confederate  flag  was  not  run  up  until  after  I  had 
asked  Captain  Baker  by  what  authority  he  ordered  me  to  go 
on  board;  then  the  Confederate  flag  was  run  up;  that  was 
just  before  I  went  on  board. 

Cross-examined  by  Mr.  Larocque. 
Q.  Be  good  enough  to  spell  your  name. 


46  TRIAL   OF   THE   OFFICEE8   AND   CREW 

A.  Thies  N".  Meyer. 

Q.  Was  there  any  flag  hoisted  on  board  the  Savannah  at 
the  time  she  was  captured  by  the  Perry,  or  immediately  pre 
ceding  that  ? 

A.  They  were  trying  to  hoist  the  Stars  and  Stripes  up,  but 
it  got  foul  and  they  could  not  get  it  up,  and  they  had  to  haul 
it  down  again. 

Q.  Then  she  had  no  flag  flying  at  the  time  ?     A.  No,  sir. 

The  District  Attorney  here  put  in  evidence  the  certified 
copy  of  the  record  of  naturalization  of  Thies  N.  Meyer,  cap 
tain  of  the  Joseph,  dated  28th  January,  1856. 

Horace  W.  Bridges,  examined  by  District  Attorney  Smith. 

Q.  You  were  mate  of  the  Joseph  when  she  was  captured 
by  the  Savannah  ?  A.  Yes. 

Q.  Do  you  know  the  names  of  the  others  of  the  crew  be 
side  yourself  and  the  captain  ? 

A.  I  do  not  know  all  of  them. 

Q.  State  those  you  know  ? 

A.  The  cook's  name  is  Nash,  and  there  was  another  man 
named  Harry  Quincy  ;  that  is  all  I  know. 

Q.  Were  they  citizens  of  the  United  States  ? 

A.  I  think  they^  were  both. 

Q.  Are  you  a  citizen  of  the  United  States  ? 

A.  Yes  ;  I  was  born  in  the  State  of  Maine. 

Q.  You  have  heard  the  statement  of  Captain  Meyer  as  to 
the  seizure  of  the  vessel  ?  A.  Yes. 

Q.  You  were  on  board  the  Joseph  after  she  parted  com 
pany  with  the  Savannah  and  sailed  for  South  Carolina? 

A.  Yes,  sir. 

Q.  Under  whose  direction  did  she  sail  ? 

A.  By  the  direction  of  the  prize-master. 

With  a  prize  crew  from  the  Savannah  ?     A.  Yes. 

Do  you  recollect  the  name  of  the  prize-master  ? 

Evans. 

How  many  men  did  the  crew  consist  of  ? 

A.  Six,  with  the  prize-master. 

Q.  What  did  they  do  with  the  vessel  ? 

A.  Took  her  into  Georgetown. 

Q.  What  was  done  with  you  and  the  others  of  the  crew  ? 

A.  We  were  taken  to  jail  at  Georgetown. 

Q.  What  was  done  with  the  vessel  ? 

A.  I  believe  she  was  sold,  from  what  I  saw  in  the  papers 
and  what  I  was  told. 

Q.  Where  were  you  taken  from  Georgetown  ? 

A.  To  Charleston. 

Q.  What  was  done  with  you  there  ? 


OF  THE   SCHOONER   SAVANNAH.  47 

A.  We  were  put  in  jail  again. 

Q.  How  long  were  you  kept  in  jail  in  Georgetown  ? 

A.  About  2  months  and  20  days. 

Q.  How  long  were  you  kept  in  jail  in  Charleston  ? 

A.  Three  days. 

Cross-examined  ly  Mr.  Larocque. 

Q.  You  said  that,  while  you  were  held  as  a  prisoner  at 
Georgetown,  you  saw  something  in  reference  to  the  sale  of  the 
Joseph  in  the  papers  ?  A.  Yes. 

Q.  What  was  the  purport  of  it  ? 

J[.  She  was  advertised  for  sale. 

Q.  Under  legal  process  ? 

A.  I  do  not  know  about  that.  I  was  also  told  of  it  by  one 
of  the  prize  crew  that  took  us  in. 

Q.  You  saw  in  the  newspapers  an  advertisement  of  the 
sale?  A.  Yes. 

Q.  Was  that  of  a  sale  by  order  of  a  Court  ? 

A.  It  was  a  sale  by  order  of  the  Sheriff  or  Marshal. 

Q.  As  a  prize  ? 

Objected  to  by  District  Attorney  Smith,  for  two  reasons  : 

first — That  it  was  a  mere  newspaper  account ;  and, 

Secondly — That  the  newspaper  was  not  produced. 

After  argument,  the  Court  decided  that  there  was  no 
foundation  laid  for  this  hearsay  evidence. 

Q.  Did  the  advertisement  state  by  whose  authority  the 
sale  was  to  take  place  ? 

A.  I  do  not  recollect  anything  about  that. 

Q.  Do  you  recollect  the  name  of  a  judge  as  connected  with 
it?  A.  No,  sir.  There  was  no  judge  connected  with  the  sale. 

Q.  Do  you  recollect  the  name  of  Judge  Magrath  in  connec 
tion  with  it  ? 

A.  No,  sir ;  I  recollect  his  name  in  connection  with  some 
prize  cases,  but  not  in  connection  with  the  sale  of  the  Joseph. 

Q.  Since  your  arrival  at  New  York,  you  have  been  exam 
ined  partially  by  the  District  Attorney,  and  have  made  a 
statement  to  him?  A.  Yes. 

Q.  Did  you  not  state  on  that  examination  that  while  you 
were  in  confinement  the  vessel  was  confiscated  by  Judge  Ma 
grath,  and  sold  at  Georgetown  ? 

A.  No,  sir ;  I  do  not  think  I  did. 

Q.  You  were  released  at  Charleston,  after  a  confinement  of 
three  days  ?  A.  Yes. 

Q.  How  did  you  get  out  ?     A.  The  Marshal  let  us  out. 

Q.  While  you  were  in  confinement  at  Georgetown  or 
Charleston  was  your  examination  taken  in  any  proceeding 
against  the  bark  Joseph,  or  in  relation  to  her  ? 


43  TRIAL   OF   THE   OFFICERS   AND   CREW 

A.  Yes,  sir.     In  Georgetown. 

Q.  By  whom  was  that  examination  taken  ? 

Mr.  Eva/fit  suggested  that  there  was  a  certain  method  of 
proving  a  judicial  inquiry. 

Judge  Nelson :  They  may  prove  the  fact  of  the  examina 
tion. 

Q.  Before  whom  were  you  examined  ? 

A.  Before  a  man  who  came  from  Charleston. 

Q.  Did  he  take  your  examination  in  writing?     A.  Yes,  sir. 

Q.  Did  you  learn  what  his  name  was  ? 

A.  I  think  his  name  was  Gilchrist. 

Q.  "Were  you  sworn,  as  a  witness  ?     A.  Yes. 

Q.  What  proceeding  was  that,  as  you  were  given  to  under 
stand,  and  what  was  the  object  of  the  examination  ? 

A.  The  object  of  it  was  to  find  out  what  vessel  she  was, 
what  was  her  nationality,  and  who  owned  the  cargo  belonging 
to  her. 

And  you  gave  your  testimony  on  these  subjects.    A.  Yes. 
Was  it  in  written  questions  put  to  you?    A.  I  think  so. 
And  you  signed  your  examination  f     A.  Yes. 
And  what  came  of  it  afterwards  ?     A.  I  do  not  know. 
Was  it  taken  away  by  Mr.  Gilchrist?     A.  I  expect  so. 
Was  there  any  other  of  the  crew  besides  yourself  exam 
ined"?    A.  Yes;   all  of  them. 

Q.  On  the  same  subject?     A.  I  expect  so. 

Q.  Were  you  present  during  the  examination  of  them  all  ? 

A.  No  ;  only  at  my  own. 

Q.  What  newspaper  was  it  that  you  saw  that  advertisement 
in  ?  A.  I  think  in  the  Charleston  Courier. 

Q.  Do  you  recollect  its  date  ?     A.  No,  sir. 

Q.  What  had  become  of  the  vessel  when  you  went  to 
Charleston  ?  A.  She  was  lying  in  Georgetown. 

Q.  Do  you  know  in  whose  possession,  or  under  whose 
charge,  she  was?  A.  I  do  not. 

Q.  Was  she  in  Georgetown,  in  the  hands  of  the  Marshal, 
to  your  knowledge  ? 

~A.  No,  sir  ;  not  to  my  knowledge.  I  was  in  prison  at  the 
time. 

Commodore  /Silas  H.  Stringham,  examined  by  District 
Attorney  Smith. 

Q.  You  are  in  the  United  States  Navy  ?     A.  I  am. 
Q.  The  Minnesota  was  the  flag  ship  of  the  Atlantic  Block 
ading  Squadron,  off'  Charleston  ? 

A.  Yes,  sir.     I  was  the  commanding  officer. 

Q.  The  Minnesota  took  the  prisoners  off  the  Perry  ? 


OF   THE   SCHOONER   SAVANNAH.  49 

A.  Yes;  on  the  5th  of  June,  in  the  afternoon. 

Q.  State  precisely  where  the  transfer  from  the  Perry  to  the 
Minnesota  was  made  ? 

A.  I  discovered,  about  mid-day,  a  vessel  close  in  to  Charles 
ton.  I  stood  off  to  make  out  what  she  was.  A  short  time 
afterwards  we  discovered  it  was  the  Perry,  and  were  surprised 
to  find  her  there,  as  she  had  been  ordered,  some  time  previously, 
to  Fernandina,  Fla.  She  hailed  us,  and  informed  us  she  had 
captured  a  piratical  vessel.  The  vessel  was  half  a  mile  astern. 
Captain  Parrott,  of  the  Perry,  came  and  made  to  me  a  report 
of  what  had  taken  place.  I  ordered  him  to  send  the  prisoners 
on  board,  and  sent  a  few  men  on  board  the  Savannah  to  take 
charge  of  her  during  the  night.  The  vessels  were  then  anchored. 
The  next  morning  I  made  arrangements  to  put  a  prize  crew  on 
board  the  Savannah,  and  send  her  to  New  \  ork,  and  I  directed 
the  Captain  of  the  Joseph  to  take  passage  in  her.  I  took  the 
prisoners  from  the  Perry,  and  directed  the  Perry  to  proceed 
on  her  cruise,  according  to  her  previous  orders.  1  then  got  the 
Minnesota  under  weigh,  and  took  the  privateer  in  tow,  and 
brought  her  close  in  to  Charleston  harbor,  within  3  miles,  so 
as  to  let  them  see  that  their  vessel  was  captured.  Some  slaves 
in  a  boat  told  me  next  day  that  they  had  seen  and  recognized 
the  vessel. 

Mr.  Brady :  The  question  you  were  called  upon  to  answer 
is,  as  to  the  place  where  the  prisoners  were  transferred  from 
the  Perry  to  the  Minnesota, 

A.  The  transfer  was  made  about  10  miles  from  Charleston 
Harbor,  out  at  sea.  It  was  fully  10  miles  off. 

Q.  State  the  design  of  transferring  the  prisoners  to  the 
Minnesota  ? 

Objected  to  by  Mr.  Larocque. 

ARGUMENT  ON  THE  JURISDICTION. 

The  District  Attorney,  Mr.  Smith,  stated  that  he  would 
prove  that  every  thing  done  from  that  time  onward  was  done 
in  pursuance  of  a  design  then  conceived  of  sending  the  prisoners 
to  the  port  of  New  York. 

Mr.  Larocque  contended  that  the  naked  question  of  juris 
diction,  or  want  of  jurisdiction,  could  not  be  affected  by  show 
ing  that  the  prisoners  were  taken  on  board  a  particular  vessel, 
with  or  without  a  particular  design.  All  that  affected  that 
question  was,  the  place  where  the  prisoners  were  first  taken  to 
after  they  were  captured.  The  only  question  their  honors 
could  consider  was,  whether,  after  their  apprehension,  the  pri^ 
soners  were  or  were  not  brought  within  the  District  of  Virginia-, 
so  as  to  give  the  Court  of  Virginia  jurisdiction,  before  they 
4 


50  TRIAL    OF   THE    OFFICERS    AND   CREW 

were  brought  to  New  York.  The  fact  that  Commodore  String- 
ham  did,  or  did  not,  entertain  in  his  own  mind  a  design  to 
bring  the  prisoners  to  New  York,  was  of  no  relevancy  what 
ever.  Their  objection  was  based  on  the  broad  ground,  that 
the  statute  had  fixed  the  only  District  that  was  to  have  juris 
diction  of  these  criminals,  namely,  the  District  within  which 
they  are  first  brought.  If  they  were  first  brought  within  the 
District  of  Virginia,  the  design  which  the  Commodore  might 
have  entertained  made  no  manner  of  difference,  and  the  fact 
could  not  be  got  rid  of  by  any  evidence  to  show  that  the  de 
sign  was  not  to  put  themselves  in  that  dilemma. 

Mr.  James  T.  Brady  submitted  an  argument  on  the  same 
side.  He  said  that  the  true  test  of  the  correctness  of  the 
objection  could  be  ascertained  thus:  If  a  man  were  arrested 
anywhere  on  the  high  seas,  supposed  to  be  amenable  to  the 
Act  of  1790,  and  was  brought  into  a  port  of  the  United  States, 
within  a  Judicial  District  of  the  United  States,  could  he  not 
demand,  under  the  Act  of  Congress,  to  be  tried  in  that  Dis 
trict?  Could  the  commander  of  the  vessel  supersede  that  Act 
of  Congress,  and  say  he  would  take  the  prisoner  into  the  port 
of  New  York,  or  any  other  port?  What  answer  would  that 
be  to  a  writ  of  habeas  corpus  sued  out  by  either  of  these  men 
confined  on  that  ship,  within  that  Judicial  District?  If  any 
such  rule  as  that  could  prevail,  the  Act  of  Congress  would  be 
come  perfectly  nugatory  and  subservient  to  the  will  of  the  in 
dividual  who  apprehended  prisoners  on  the  high  seas.  If  he 
had  started  on  a  cruise  round  the  world,  he  could  carry  them 
with  him,  and,  after  returning  to  the  United  States,  could  take 
them  into  every  District  till  he  came  to  the  one  that  suited  him. 
Mr.  Brady,  therefore,  claimed  that  it  was  wholly  immaterial 
what  might  have  been  the  design  of  Commodore  Stringham  ; 
and  that  the  question  of  jurisdiction  was  determined  by  the 
physical  fact,  as  to  what  was  the  first  Judicial  District  into 
which  these  men  were  brought  after  being  apprehended  on 
the  high  seas. 

Mr.  Evarts  considered  that  this  was  a  question  rather  of 
regularity  of  discussion,  than  a  question  to  be  now  absolutely 
determined  by  the  Court,  He  supposed  that  they  were  entitled 
to  lay  before  the  Court  all  the  attendant  facts  governing  the 
question  of,  whether  the  introduction  of  these  criminals  from 
the  point  of  seizure  on  the  high  seas  was,  within  the  legal  sense, 
made  into  the  District  of  New  York,  or  into  that  of  Virginia — 
whether  the  physical  introduction  of  prisoners,  in  the  course  of 
a  voyage  toward  the  port  of  New  York,  into  the  roads  at 
Hampton,  is,  within  the  meaning  of  the  law,  a  bringing  them 
into  the  District  of  Virginia.  If  the  substantial  qualification 
of  the  course  of  the  voyage  from  the  point  of  seizure  to  the 


OF   THE   SCHOONER   SAVANNAH.  51 

place  of  actual  demarcation  was  to  afl'ect  the  act,  this  was 
the  time  for  the  prosecution  to  produce  that  piece  of  evi 
dence  ;  and  he  supposed  that  that  important  inquiry  should  be 
reserved  till  the  termination  of  the  case,  when  the  proof  would 
be  all  before  the  Court.  He  suggested  that  no  large  ship 
could  enter  the  port  of  New  York  without  physically  passing 
through  what  might  be  called  the  District  of  New  Jersey ;  and 
argued  that,  in  no  sense  of  the  act,  and  in  no  just  sense,  should 
these  prisoners  be  tried  in  New  Jersey,  because  the  ship  carry 
ing  them  had  passed  through  her  waters. 

Mr.  Larocque,  for  the  defendants,  contended  that  the  ar 
rest  of  the  parties  as  criminals  was  at  the  moment  when  they 
were  taken  from  on  board  the  Savannah,  placed  on  board 
the  Perry,  and  put  in  irons.  The  learned  gentleman  (Mr. 
Evarts)  had  said  that  it  wrould  be  impossible  to  bring  them 
within  the  District  of  New  York  without  first  bringing  them 
within  the  District  of  New  Jersey  ;  but  that  objection  was  met 
by  the  fact  that,  over  the  waters  of  the  bay  of  New  York,  the 
States  of  New  Jersey  and  New  York  exercised  concurrent 
jurisdiction,  and  therefore  they  came  within  the  District  of 
New  York,  to  all  intents  and  purposes.  He  proposed  to  refer 
to  the  authorities  on  which  the  point  rested. 

In  this  case,  the  place  where  the  arrest  was  made  was  the 
Perry,  a  United  States  cruiser,  which,  in  one  sense,  was  equiv 
alent  to  a  part  of  the  national  soil ;  and  he  held  that  the  idea 
under  this  statute  was,  that  their  apprehension  and  confinement 
from  the  moment  they  were  arrested  as  criminals  was  complete, 
without  being  required  to  be  under  legal  process,  it  being  suf 
ficient  that  they  were  arrested  by  the  constituted  authorities 
of  the  United  States.  The  moment  they  were  brought  within 
a  Judicial  District  of  the  United  States,  that  moment  the  juris 
diction  attached ;  and  no  jurisdiction  could  attach  anywhere 
else.  This  was  an  offence  committed  on  the  high  seas.  All 
the  Districts  of  the  country  could  not  have  concurrent  juris 
diction  over  it ;  and  this  very  case  was  an  exemplification  of 
the  injustice  that  would  result  from  permitting  an  officer,  in 
times  of  high  political  excitement,  to  have  the  privilege,  at  his 
mere  pleasure  or  caprice,  of  selecting  the  place  of  jurisdiction, 
and  the  place  of  trial.  Suppose  these  prisoners,  instead  of 
being  landed  at  the  first  place  where  the  vessel  touched,  could 
have  been  taken  up  the  Mississippi  river  in  a  boat,  and  up  the 
Ohio  river  in  another  boat,  and  landed  within  the  District  of 
Ohio,  for  the  purpose  of  being  tried  there, — would  not  their 
honors'  sense  of  justice  and  propriety  revolt  at  that?  The 
same  injustice  would  result  in  a  different  degree,  and  under 
different  circumstances,  if,  after  taking  these  prisoners  to  Vir 
ginia  and  ascertaining  the  difficulties  in  the  way  of  their  being 


52  TRIAL    OF   THE   OFFICERS    AND   CREW 

tried  there,  the  officer  could  change  their  course  and  brinii 
them  into  the  port  of  New  York.  The  prisoners  were  entitled 
to  the  benefit  of  being  tried  in  the  District  where  they  were  first 
taken,  in  preference  to  any  other  District ;  and  justice  would  be 
more  surely  dorfe  by  holding  a  strict  rule  on  that  subject,  by 
requiring  that  the  facts  should  control,  and  that  no  mere  in 
tention  on  the  part  of  the  captors  should  be  allowed  to  govern. 

One  of  the  cases  on  this  subject  which  had  produced  a  mis 
apprehension  of  the  question  was  that  of  the  United  States 
vs.  Thompson,  1st  Sumner's  Reports,  which  was  an  indict 
ment  for  endeavoring  to  create  a  revolt,  under  the  Act  of  1790. 
It  was  in  the  Massachusetts  District.  The  facts  in  the  case 
were  these  : — "  The  vessel  arrived  at  Stoniugton,  Connecticut, 
and  from  thence  sailed  to  New  Bedford,  Massachusetts,  where 
the  defendant  was  arrested,  and  committed  for  trial.  It  did 
not  appear  that  he  had  been  in  confinement  before.  Judge 
Story  ruled  on  the  question  of  jurisdiction.  He  said:  'The  lan 
guage  of  the  Crimes  Act  of  1790  (Cap.  36,  sec.  8)  is,  that  the 
trial  of  crimes  committed  on  the  high  seas,  or  in  any  place  out 
of  the  jurisdiction  of  any  particular  State,  shall  be  in  the  Dis 
trict  in  which  the  offender  is  apprehended,  or  into  which  he 
shall  first  be  brought.  The  provision  is  in  the  alternative,  and 
therefore  the  crime  is  cognizable  in  either  District.  And  there 
is  wisdom  in  the  provision ;  for  otherwise,  if  a  ship  should,  by 
stress  of  weather,  be  driven  to  take  shelter  temporarily  in  any 
port  of  the  Union,  however  distant  from  her  home  port,  the 
master  and  all  the  crew,  as  well  as  the  ship,  might  be  detained y 
and  the  trial  had  far  from  the  port  to  which  she  belonged,  or  to 
which  she  was  destined.  And  if  the  offender  should  escape 
into  another  District,  or  voluntarily  depart  from  that  into  which 
he  was  first  brought,  he  would,  upon  an  arrest,  be  necessarily 
required  to  be  sent  back  for  trial  to  the  latter.  And  now  there 
is  no  particular  propriety,  as  to  crimes  committed  on  the  high 
seas,  in  assigning  one  District  rather  than  another  for  the  place 
of  trial,  except  what  arises  from  general  convenience ;  and 
the  present  alternative  provision  is  well  adapted  to  this  pur 
pose.'  ' 

This  was  noticed,  in  the  first  place,  in  the  case  of  the  United 
States  vs.  Edward  0.  Townsend,  of  which  he  (Mr.  Larocque) 
held  in  his  hand  a  copy  of  the  exemplication  of  the  record. 
Townsend  was  charged,  in  the  District  Court  of  Massachusetts, 
with  piracy,  in  having  been  engaged  in  the  slave  trade,  in  1858. 
He  was  captured  on  board  the  brig  Echo,  by  a  United  States 
cruiser.  That  vessel  first  made  the  port  of  Ivey  West,  putting 
in  there  for  water  ;  and  thence  proceeded  to  Massachusetts, 
where  the  prisoner  was  landed,  taken  into  custody  under  a 
warrant  of  the  Commissioner,  and  the  matter  brought  before 


OF   THE    SCHOONER    SAVANNAH.  53 

ilie  Grand  Jury,  for  the  purpose  of  having  an  indictment  found 
iiiruinst  him.  In  that  case  Judge  Sprague  charged  the  Grand 
Jury  that,  under  the  law,  the  prisoner  could  only  be  tried  in 
Key  West,  because  that  was  the  first  port  which  the  vessel  had 
made  after  he  had  been  captured  and  confined  as  a  prisoner. 
Under  that  instruction  the  Grand  Jury  refused  to  find  a  bill  of 
indictment ;  and  thereupon  the  District  Attorney  (Mr.  Wood- 
bury)  applied  to  the  court  for  a  warrant  of  removal,  to  remove 
him  to  Key  West,  for  trial ;  and  also  to  have  the  witnesses  re 
cognized  to  appear  at  Key  West,  to  testify  on  the  trial.  The 
counsel  read  a  note  from  Mr.  Woodbury  on  the  subject,  show 
ing  that  Mr.  Justice  Clifford,  of  the  Supreme  Court  of  the 
United  States,  sat  and  concurred  with  Judge  Sprague  in  grant 
ing  the  warrant  of  removal.  He  referred  also  to  another  case, 
decided  by  Judge  Sprague — the  United  States  vs.  Bird — 
volume  ol  Judge  Sprague  s  Decisions,  page  299 :  "  This  indict 
ment  alleged  an  offence  to  have  been  committed  on  the  high 
seas,  and  that  the  prisoner  was  first  brought  into  the  District 
of  Massachusetts.  Questions  of  jurisdiction  arose  upon  the  evi 
dence.  The  counsel  for  the  prisoner  contended  that  the  offence, 
if  any,  was  committed  on  the  Mississippi  river,  and  within  the 
State  of  Louisiana;  and,  further,  that  if  committed  beyond  the 
limits  of  that  State,  the  prisoner  was  not  first  brought  into  this 
District.  Sprague,  J.,  said  that,  if  an  offence  be  committed 
within  the  United  States,  it  must  be  tried  in  the  State  and  Dis 
trict  within  which  it  was  committed.  Constitution  Amendment 
•6,  If  the  offence  be  committed  without  the  limits  of  the  United 
States,  on  the  high  seas,  or  in  a  foreign  port,  the  trial  must  be 
had  in  the  District  '  where  the  offender  is  apprehended,  or  into 
which  he  may  be  first  brought.' — Stat.  1790,  cap.  9,  sec.  8 ; 
Stat.  1825,  cap.  65,  sec.  14.  By  being  brought  within  a  Dis 
trict,  is  not  meant  merely  being  conveyed  thither  by  the  ship 
on  which  the  offender  may  first  arrive;  but  the  statute  contem 
plates  two  classes  of  cases :  one,  in  which  the  offender  shall 
have  been  apprehended  without  the  limits  of  the  United  States, 
and  brought  in  custody  into  some  Judicial  District;  the  other, 
in  which  he  shall  not  have  been  so  apprehended  and  brought, 
but  shall  have  been  first  taken  into  legal  custody,  after  his  ar 
rival  within  some  District  of  the  United  States,  and  provides 
in  what  District  each  of  these  classes  shall  be  tried.  It  does 
not  contemplate  that  the  Government  shall  have  the  election 
in  which  of  two  Districts  to  proceed  to  trial.  It  is  true  that,  in 
United  States  vs.  Thompson,  1  Su inner,  108,  Jud^e  Story  seems 
to  think  that  a  prisoner  might  be  tried  either  in  the  District 
where  he  is  apprehended,  or  in  the  District  into  which  he  is 
first  brought.  But  the  objection  in  that  case  did  not  call  for 
.any  careful  consideration  of  the  meaning  of  the  word  'brought,' 


54:  TRIAL   OF  THE   OFFICERS   AND  CREW 

as  used  iu  the  statute ;  nor  does  he  discuss  the  question,  whether 
the  accused ,  having  come  in  his  own  ship,  satisfies  that  requisition .. 
In  that  case  the  party  had  not  "been  apprehended  abroad  ;  and 
the  decision  was  clearly  right,  as  the  first  arrest  was  in  the 
District  of  Massachusetts.  The  statute  of  1819,  cap.  101,  sec. 
1  (3  U.  S.  Statutes  at  Large,  532),  for  the  suppression  of  the 
slave  trade,  is  an  example  of  a  case  in  which  an  offender  may 
be  apprehended  without  the  limits  of  the  United  States,  and 
sent  to  the  United  States  for  trial.  Ex  parte  Bollman  vs.  Swart- 
wout,  4  Cranch,  136." 

Their  honors  would  observe  that  in  both  the  cases  cited, 
correcting  the  manifest  misapprehension  of  Judge  Story,  the 
point  was  distinctly  held  that  the  question  of  jurisdiction  was 
controlled  exclusively  by  the  fact  as  to  what  District  the 
prisoner  was  first  brought  into  after  his  arrest  on  the  high  seas, 
out  of  the  United  States,  for  a  crime  committed  on  the  high 
seas. 

Judge  Nelson  stated  that,  as  it  was  now  late  (half-past  5  P. 
M.),  the  question  might  go  over  till  morning. 

The  counsel  on  each  side  assenting,  the  Jury  were  allowed 
to  separate,  with  a  caution  from  the  Court  against  conversing 
in  respect  to  the  case. 

Adjourned  to  Thursday,  at  11  A.  M. 


SECOND    DAY. 

Thursday,  Oct.  24,  1861. 
The  Court  met  at  11  o'clock  A.  M. 

Judge  Nelson,  in  deciding  the  question  raised  yesterday, 
said: 

So  far  as  regards  the  question  heretofore  under  considera 
tion  of  Judge  Sprague,  we  do  not  think  that  at  present  in 
volved  in  the  case.  We  will  confine  ourselves  to  the  decision 
of  the  admissibility  of  the  question  as  it  was  put  by  the  District 
Attorney  and  objected  to,  as  respects  the  purpose  with  which 
the  Minnesota,  with  the  prisoners,  was  sent  to  Hampton  Roads. 
We  think  that  the  fact  of  their  being  sent  by  the  commanding 
officer  of  that  place,  with  the  prisoners,  to  Hampton  Roads,  is 
material  and  necessary;  and,  in  order  to  appreciate  fully  the 
fact  itself,  the  purpose  is  a  part  of  the  res  yestce  that  charac 
terizes  the  fact.  What  effect  it  may  have  upon  the  more  gen 
eral  question,  involving  the  jurisdiction  of  the  Court,  is  not 
material  or  necessary  now  to  consider.  We  think  the  question 
is  proper. 


OF   THE    SCHOONER    SAVANNAH.  DO 

Counsel  for  defendants  took  exception  to  the  ruling  of  the 
Court. 

Commodore  Strinyham  recalled.  Direct  examination  re 
sumed  by  Mr.  Smith. 

Q.  What  was  your  object  in  transferring  the  prisoners  from 
the  Perry  to  the  Minnesota  ? 

A.  Sending  them  to  a  Northern  port.  The  port  of  New 
York  was  the  port  I  had  in  my  mind.  To  send  them  by  the 
first  ship  from  the  station,  as  soon  as  possible,  to  a  Northern 
port,  for  trial.  I  could  not  send  them  to  a  Southern  port  for 
trial.  The  only  way  I  could  do  so  would  be  by  guns.  I  coiild 
get  no  landing  in  those  places  otherwise  ;  and  I  could  get  no 
judge  or  jury  to  give  them  a  trial. 

Mr.  Larocque  asked  if,  conceding  the  propriety  of  the  in 
quiry,  the  statement  of  the  witness  was  competent,  viz. :  that 
he  had  a  port  in  his  mind. 

The  Court:  No;  the  question  was  not  put  in  the  shape  I 
supposed.  The  question  should  have  been — for  what  purpose 
or  object  did  he  send  the  prisoners  in  the  Minnesota  to  Hamp 
ton  Roads?  That  is  the  point  in  the  case — the  intent  with 
which  the  vessel  was  sent  to  Hampton  Roads  ? 

A.  I  sent  them  there  with  the  intention  of  sending  them  to 
a  Northern  port,  for  trial.  The  Harriet  Lane  being  the  first 
vessel  that  left,  after  my  arrival  there,  they  were  sent  in  the 
Harriet  Lane  to  the  Northern  port  of  New  York. 

Q.  Why  did  you  not  take  them  in  the  Minnesota  directly 
to  New  York,  instead  of  taking  them  to  Hampton  Roads  ? 

A.  My  station  was  at  Hampton  Roads,  and  I  went  there  to 
arrange  the  squadron  that  might  be  there,  and  to  get  a  supply 
of  fuel  for  the  ship.  I  do  not  think  we  had  enough  to  go  to 
New  York,  if  we  wished  to  go  there.  I  had  supplied  vessels 
on  the  coast  below,  and  had  exhausted  pretty  nearly  all  the  coal 
from  the  Minnesota  when  we  arrived  at  Hampton  Roads. 

Q.  What  directions  did  you  give  to  the  officers  of  the  Har 
riet  Lane  ? 

A.  I  gave  no  directions  to  the  officers  of  the  Harriet  Lane. 
I  gave  directions  to  the  commander  of  the  Minnesota.  I  left 
on  the  day  previous,  I  think,  to  their  being  transferred  to  the 
Harriet  Lane, — giving  directions  that,  as  soon  as  she  came  down 
from  Newport  News,  to  send  her  to  New  York,  with  the 
prisoners.  I  had  been  called  to  Washington,  by  the  Secretary 
of  the  Navy,  the  day  before  she  sailed. 

Q.  Are  you  aware  of  any  facts  which  rendered  it  impossible 
to  land  the"  prisoners  in  the  Virginia  District,  or  on  the  Vir 
ginia  shore  ? 

A.  It  was  impossible  to  land  without  force  of  arms,  and 


-56.  TKIAL   OF  THE   OFFICEKS   AND   CREW 

taking  possession  of  any  port.  We  could  land  them  there,  but 
not  for  trial,  certainly.  The  Harriet  Lane  had  been  lired  into 
but  a  short  time  previous ;  and  that  was  one  cause  of  sending 
her  to  New  York. 

Q.  Fired  into  from  the  Virginia  shore  ? 

A.  Yes,  sir ;  from  Field  Point ;  I  should  judge,  about  8  miles 
from  Norfolk  port,  on  the  southern  shore,  nearly  opposite  New 
port  News.  I  was  not  there,  but  it  was  reported  to  me.  She 
was  fired  into,  and  she  was  ordered  to  New  York  to  change  her 
armament. 

Q.  "Was  that  fort  in  the  way,  proceeding  to  Norfolk  ? 

A.  Not  on  the  direct  way  to  Hampton  Roads,  but  a  little 
-point  on  the  left. 

Q.  Would  a  vessel,  going  the  usual  way  to  Norfolk,  be  in 
range  of  the  guns  that  were  fired  at  the  Harriet  Lane  ? 

A.  Not  of  these ;  but  she  would  be  in  the  range  of  four  or 
five  forts  that  it  would  be  necessary  to  pass  in  order  to  laud 
.the  prisoners  at  Norfolk. 

Q.  What  was  the  nearest  port  to  where  the  Minnesota  went 
•  vith  the  prisoners? 

A.  The  nearest  port  of  entry  was  Norfolk.  Hampton  Roads 
was  a  little  higher  up.  We  were  not  anchored  exactly  at  the 
Roads,  but  off  Old  Point,  which  is  not  considerad  Hampton 
Roads. 

[Map  produced.]  I  have  marked  the  position  of  the 
Minnesota  on  this  map,  in  blue  ink.  [Exhibits  the  position  to 
the  Court.] 

Q.  State  the  position  of  the  Minnesota  ( 

A.  That  is  as  near  as  I  can  put  it — between  the  Rip  Raps 
and  Fortress  Monroe — a  little  outside  of  the  Rip  Raps. 

Q.  In  what  jurisdiction  is  the  Fort  \ 

A.  In  the  United  States. 

(Objected  to,  as  matter  of  law.) 

Q.  At  what  distance  were  you  from  Fortress  Monroe  ? 

A.  About  three-quarters  of  a  mile,  and  nearly  the  same 
from  the  Rip  Raps. 

Q.  What  distance  from  Norfolk? 

A.  I  think  14  miles,  as  near  as  I  can  judge ;  12  or  14. 

Q.  Had  you  any  instructions  from  the  Government,  in 
respect  to  iiny  prisoners  that  might  be  arrested  on  the  high  seas, 
as  to  the  place  they  were  to  be  taken  to  '. 

A.  Not  previous  to  my  arriving  at  Hampton  Roads.  After 
that,  I  had.  Those  instructions  were  in  writing. 

Q.  You  had  no  particular  or  general  instructions  previous 
to  that  ? 

A.  No,  sir;  it  was  discretionary  with  me,  previous  to  that, 
where  to  send  the  prisoners  I  had. 


OF  THE   SCHOONER    SAVANNAH.  57 

Q.  When  vessels  are  sent  from  one  place  to  another,  state 
whether  it  is  not  frequently  the  case  that  they  take  shelter  in 
roadsteads  ? 

(Objected  to.     Excluded.) 

Q.  Where  did  your  duties,  as  nag-officer  of  the  squadron, 
require  you  to  be  with  your  ship,  the  Minnesota  ? 

(Objected  to.     Excluded.) 

Q.  Where  do  Hampton  Roads  commence  on  this  map,  and 
where  end  ? 

A.  In  my  experience,  I  have  always  considered  it  higher 
up  than  where  we  were  anchored.  This  is  anchoring  off  For 
tress  Monroe,  when  anchoring  there.  When  they  go  a  little 
higher  up,  they  go  to  Hampton  Roads ;  and,  before  the  war, 
small  vessels  anchored  up  in  Newport  News,  in  a  gale  of  wind. 

Q.  Where  did  the  Minnesota  anchor,  in  respect  to  Hamp 
ton  Roads  ? 

A.  We  anchored  outside,  sir.  I  can  only  say  this  from  the 
pilot.  When  commanding  the  Ohio,  he  asked  me  whether  I 
wished  to  anchor  inside  the  Roads.  Baltimore  pilots  have  per 
mission  to  go  into  Hampton  Roads,  and  no  farther.  That  is 
considered  as  neutral  ground  for  all  vessels. 

By  the  Court : 

Q.  What  is  the  width  of  the  entrance  to  the  Hampton 
Roads  ? 

A.  I  should  judge  about  3J  miles,  or  3J,  from  Old  Point 
over  to  Sewall's  Point.  I  have  not  measured  it  accurately.  It 
is  from  3  to  4  miles. 

By  Mr.  Smith  : 

Q.  Was  the  Minnesota  brought  inside  or  outside  of  a  line 
drawn  from  Old  Point  to  the  Rip  Raps  ? 

A.  A  little  outside  of  the  line,  sir. 

By  a  Juror : 

Q.  Would  a  person  be  subject  to  any  port-charges  where 
the  Minnesota  lay  ?  A.  No,  sir. 

Defendants'  counsel  objected  to  the  question  and  answer. 

The  Court  : 

Q.  What  do  you  mean  by  port  dues  ? 

A.  I  mean  they  do  not  have  to  enter  into  the  custom-house 
to  pay  port-charges.  It  is  not  a  port  of  entry,  that  compels 
them  to  carry  their  papers.  The  only  port-charges  I  know  of 
are  the  pilot-charges,  in  and  out. 

(The  Court  ruled  it  out  as  immaterial.) 

Cross-examined  by  Mr.  Brady. 

Q.  I  want,  for  the  purpose  of  preventing  any  misapprehen 
sion,  to  ask  if  there  is  any  line  that  you  know  of,  which  you 


58  TRIAL   OF   THE   OFFICERS   AND   CREW 

could  draw  upon  that  map,  distinguishing  the  place  at  which 
Hampton  Roads  begins  ? 

A.  Nothing  only  among  sea-faring  men  ;— just  as  the  lower 
bay  of  New  York,  which  is  considered  to  be  down  below  the 
Southwest  Spit.  When  anchored  between  this  and  that,  it  is 
called  off  a  particular  place,  as  Coney  Island,  &c.  So,  there, 
after  you  pass  up  from  Fortress  Monroe,  it  is  called  Hampton 
Hoads. 

Q.  Is  there  any  specific  point  you  can  draw  a  line  from  on 
the  map  that  distinctly  indicates  where  Hampton  Roads  be 
gin  ?  A..  I  cannot,  sir. 

Q.  Designate  where  the  Harriet  Lane  was  ? 

A.  I  cannot  say,  sir.  She  was  at  Newport  News  when  I 
left,  and  came  down  the  next  day,  I  believe,  and  took  the 
prisoners  on  board  and  proceeded  to  New  York. 

Q.  The  Minnesota  was  anchored  ? 

A.  Yes,  sir,  but  not  moored  ;  with  a  single  anchor. 

Q.  How  much  cable  was  out  ? 

A.  From  65  to  70  fathoms,  I  think.  I  generally  order  65 
fathoms  ;  but  the  captain  gave  her  5  fathoms  more. 

Q.  Would  she  swing  far  enough  to  affect  the  question 
whether  she  was  in  or  outside  of  Hampton  Roads,  as  you  un 
derstood  it  ?  A.  No,  sir. 

Q.  Had  you  often  been  there  before  ? 

A.  I  bad,  sir,  often.  I  was  there  51  years  ago.  I  started 
there. 

Q.  Did  you  ever  have  occasion,  for  any  practical  purposes, 
to  locate  where  Hampton  Roads  began  ? 

A.  Yes,  sir  ;  several  times  I  have  anchored  there  with  ships 
under  my  command,  and  the  pilots  have  said,  "  Will  you  go 
up  into  the  Roads?"  and  I  said,  "Yes;"  and  we  never  an 
chored  within  two  or  three  miles  of  where  we  lay  with  the 
Minnesota. 

Q.  But  it  was  not  your  object  to  get  at  any  particular  line 
which  separated  Hampton  Roads  ? 

A.  No  ;  we  considered  it  a  better  anchorage.  The  only 
importance  was  a  better  anchorage. 

Q.  You  had  no  instructions  of  any  kind  in  regard  to  the 
prisoners  before  you  left  for  Washington  ? 

A.  I  would  say  I  had  not,  before  I  arrived  at  Hampton 
Roads,  or  at  Old  Point. 

Q.  Did  you  receive  any  between  the  time  of  your  arrival 
and  your  departure  for  Washington  ? 

A.  I  cannot  say,  but  I  think  not. 

Q.  The  only  instructions  you  gave  were  that,  when  the 
Harriet  Lane  came  up,  the  prisoners  should  be  removed,  and 
sent  to  New  York  ? 


OF   THE    SCHOONER  SAVANNAH.  59 

A.  I  gave  orders  that  they  should  be  sent  to  New  York 
and  delivered  to  the  Marshal. 

Q.  There  would  be  no  difficulty  to  transfer  prisoners  to 
Fortress  Monroe  ?  A.  No,  sir,  no  difficulty. 

Q.  Could  they  not  have  been  taken  to  Hampton  ? 

A.  I  think  not.  Our  troops  had  abandoned  Hampton  and 
moved  in,  I  think.  There  was  nothing  there  to  land  at  Hamp 
ton.  We  may  have  bad  possession  at  that  time. 

Q.  Do  you  know  of  any  obstacle  whatever  to  these  men 
having  been  taken  ashore  at  Old  Point  Comfort  and  carried 
to  Hampton  ? 

A.  1  went  up  twice  to  Washington,  with  Colonel  Baker, 
when  he  abandoned  Hampton ;  but  I  think  at  the  time  the 
prisoners  were  on  board  we  had  the  occupation  of  Hampton 
by  our  troops.  My  impression  is,  we  occupied  it  partly  with 
our  troops  at  that  time.  I  went  to  Washington  at  another 
time,  when  the  troops  had  abandoned  Hampton,  and  Colonel 
Baker  took  his  soldiers  up  in  the  same  boat. 

Q.  A  college  has  been  described  on  shore,  and  the  locality 
described.  Was  it  not  occupied  as  an  hospital  ? 

A.  Yes,  sir,  at  the  time  the  Minnesota  arrived.  It  is  not 
in  Hampton. 

Q.  When  the  Minnesota  arrived  with  the  prisoners  was 
not  that  building  in  possession  of  our  Government  ? 

A.  It  was,  sir,  I  believe.     I  was  not  in  it. 

By  Mr.  Evarts :    Is  not  the  hospital  at  Old  Point  ? 

A.  Near  Old  Point. 

By  Mr.  Brady :    Designate  on  the  chart  where  it  is  ? 

A.  I  have  done  so, — the  square  mark,  on  the  shore,  in  the 
rear  of  the  fort,  on  the  Virginia  shore. 

By  the  Court :     How  much  of  a  town  is  Hampton  ? 

A.  There  is  none  of  it  left  now.  I  suppose  it  was  a  town 
of  4,000  or  5,000  inhabitants. 

Q.  Was  it  not  formerly  a  port  of  entry  ? 

A.  No,  sir,  I  believe  not ;  not  that  I  know  of.  That  was 
4  or  5  miles  off  from  the  vessel. 

By  Mr.  Brady :  How  far  was  Hampton  from  Fortress 
Monroe  ?  A.  I  should  judge  3  miles. 

Q.  I  ask  again,  before  you  left  the  Minnesota,  after  the 
arrival  of  the  prisoners,  had  you  any  instructions  from  Wash 
ington  in  regard  to  these  prisoners  ? 

A.  I  cannot  bring  to  my  mind  whether  I  had  any  or  not. 
I  had  instructions,  subsequent  to  my  arrival,  about  all  prison 
ers,  and  that  was  the  reason  why  I  came  here.  There  was 
some  question  as  to  why  I  came  with  700  prisoners ;  but  I  had 
instructions  to  bring  all  prisoners  taken,  and  turn  them  over 
to  Colonel  Burke,  of  New  York. 


60  TRIAL   OF   THE   OFFICERS   AND   CREW 

Q.  After  you  arrived  at  Washington  did  you  receive  any 
instructions  in  regard  to  these  prisoners  ? 

A.  I  do  not  know  that  I  did.  1  had  some  discussion  in 
Washington. 

Q.  Did  you  communicate  from  Washington,  in  any  way, 
to  Fortress  Monroe,  or  the  Minnesota,  in  regard  to  the  prison 
ers  ?  A.  No,  sir. 

Q.  They  went  forward  under  the  directions  you  gave  be 
fore  leaving  to  go  to  Washington  ? 

A.  They  did,  sir  ;  I  gave  the  instructions.  I  did  not  know 
whether  the  Harriet  Lane  would  be  ready.  She  was  waiting 
until  the  vessel  arrived  to  relieve  her  from  the  station. 

Q.  Was  General  Butler  at  Fortress  Monroe  at  the  time  of 
the  arrival  of  the  prisoners  ?  A.  lie  was,  sir. 

Q.  Did  you  confer  with  him  about  it  ?     A.  No,  sir. 

Q.  Neither  then  nor  at  Washington  ?     A.  No,  sir. 

Q.  Was  there  any  conversation  between  you  and  him  in 
regard  to  that  ? 

A.  I  do  not  think  there  was  until  after  my  return  and  the 
prisoners  had  gone  to  New  York. 

Re-direct. 

Q.  How  large  a  space  is  occupied  by  the  hospital  to  which 
you  have  referred  ? 

A.  I  cannot  give  the  number  of  feet,  but  I  think  about  150 
feet  square.  I  never  was  in  it  but  once,  when  I  passed  in  for 
a  moment,  and  right  out  of  the  hall. 

David  C.  Constable  called  by  the  prosecution  and  sworn. 
Examined  by  Mr.  Smith. 

Q.  You  are  a  Lieutenant  in  the  United  States  Navy  ? 

A.  Not  now  ;  I  am  First  Lieutenant  of  the  Harriet  Lane. 
We  were  then  serving  under  the  Navy;  I  am  now  in  a  reve 
nue  cutter. 

Q.  Were  you  on  board  the  Harriet  Lane  when  she  received 
the  prisoners  from  the  Minnesota?  A.  I  was,  sir. 

Q.  Who  did  you  receive  your  orders  from  on  the  subject  ? 

A.  Captain  van  Brunt,  of  the  Minnesota. 

Q.  Was  that  a  verbal  order?     A.  No  ;  a  written  one,  sir. 

Q.  Was  it  an  order  to  bring  the  prisoners  to  New  York  ? 

A.  To  proceed  with  the  prisoners  to  New  York,  and  deliver 
them  to  the  civil  authorities,  I  think. 

Q.  Where  was  the  Harriet  Lane,  in  respect  to  the  Rip  Raps 
and  fort  at  Old  Point  Comfort,  when  the  prisoners  were  taken 
on  board  from  the  Minnesota  ? 

A.  We  were  about  half  a  mile,  I  should  judge,  from  the 
Minnesota ;  a  little  nearer  in  shore. 


OF  THE   SCHOONER   SAVANNAH.  61 

Q.  Where  had  the  Harriet  Lane  come  from  ? 

A.  From  Newport  News. 

Q.  Did  she,  or  not,  come  from  Newport  News  in  pursuance 
of  the  object  to  go  to  New  York? 

A.  Yes,  sir ;  although  at  the  time  we  had  received  no  or 
ders  in  regard'  to  any  prisoners.  We  were  coming  on  for  a 
change  of  armament  and  for  repairs. 

Q.  The  Harriet  Lane  had  been  fired  into? 

A.  She  had,  sir. 

Q.  Where  was  she  when  fired  into? 

(Objected  to.  Offered  to  show  the  impossibility  of  land 
ing.  Ruled  out  as  immaterial.) 

Q.  How  was  the  transfer  made  from  the  Minnesota  to  the 
Harriet  Lane?  A.  By  boats. 

Q.  Show  on  this  map  where  the  Harriet  Lane  was  when 
the  transfer  was  made  of  the  prisoners  from  the  Minnesota, 
and  also  where  the  Minnesota  lay  ? 

[Witness  marked  the  place  on  map.] 

Q.  State  the  relative  position  of  the  vessels  as  you  have 
marked  it  ? 

A.  I  should  judge  we  were  about  a  mile  from  Old  Point,  in, 
\bout  eleven  fathoms  of  water,  and  probably  about  a  mile  from 
the  Rip  Raps.     I  do  not  remember  exactly. 

Q.  The  Harriet  Lane  was  about  half  a  mile  further  up? 

A.  Yes,  a  little  west  of  the  Minnesota,  but  farther  in  shore. 

Q.  What  is  your  understanding  in  respect  to  where  Hamp 
ton  Roads  commence,  in  reference  to  the  position  of  these 
vessels  ? 

A.  I  had  always  supposed  it  was  inside  of  Old  Point  and 
the  Rip  Raps,  after  passing  through  them, — taking  Old  Point 
as  the  Northern  extremity,  and  out  to  Sewall's  Point. 

Q.  How  in  respect  to  where  the  Harriet  Lane  lay  ? 

A.  I  consider  she  was  off  Old  Point,  and  not,  properly 
speaking,  in  Hampton  Roads. 

Q.  The  Minnesota  was  still  further  out  ? 

A.  Yes,  sir,  a  very  little. 

Q.  You  brought  the  prisoners  to  New  York  in  the  Harriet 
Lane  and  delivered  them  to  the  United  States  Marshal  at 
New  York  ?  A.  Yes,  sir. 

Q.  You  delivered  them  from  your  vessel  to  the  United 
States  Marshal? 

A.  Yes,  sir ;  the  United  States  Marshal  came  alongside 
our  ship,  while  in  the  Navy  Yard,  in  a  tug,  and  they  were 
delivered  to  him. 

Q.  Do  you  remember  the  day  they  arrived  at  New  York  ? 

A.  On  the  25th  of  June,  in  the  afternoon. 


02  TRIAL   OF   THE   OFFICERS   AND   CREW 

Q.  In  what  service  was  the  Harriet  Lane  ? 
A.  In  the  naval  service  of  the  United  States. 

Cross-examined  by  Mr.  Brady. 

Q.  As  has  already  been  stated,  there  was  no  difficulty  about 
landing  the  prisoners  from  the  Minnesota  at  Fortress  Monroe, 
or  at  the  College  Hospital,  or  at  Hampton.  Was  there  any 
difficulty  in  taking  them  to  Newport  News? 

A.  No,  sir ;  I  suppose  they  might  have  been  taken  to  New 
port  News. 

Q.  Who  was  in  possession  of  Newport  News  at  that  time  ? 

A.  The  United  States  troops,  sir.  Our  vessel  had  been 
stationed  there  for  six  weeks  preceding. 

He-direct. 

Q.  What  occupation  had  the  United  States  of  Fortress  Mon 
roe,  and  of  this  hospital  building,  and  of  Newport  News  ? 
Was  it  other  than  a  military  possession  ? 

(Objected  to  by  defendants'  counsel.) 

The  Court :  It  is  not  relevant. 

Mr.  Evarts :  We  know  there  was  no  physical  difficulty  ii* 
landing  them  ;  we  want  to  know  whether  there  was  any  other. 

The  Court :  We  need  not  go  into  any  other.  Practically, 
they  could  have  been  landed  there.  That  is  all  about  it.  As 
to  being  a  military  fort,  and  under  military  authority,  that  is 
not  of  consequence. 

Mr.  Evarts :  As  to  military  forts  receiving  prisoners  at  all 
times  ? 

The  Court :  We  do  not  care  about  that.  It  is  not  import 
ant  to  go  into  that.  We  know  it  is  a  military  fort,  altogether 
under  military  officers.  Civil  justice  is  not  administered  there, 
I  take  it. 

Daniel  T.  Tompkins  called  by  the  Government ;  sworn. 
Examined  by  Mr.  Smith. 

Q.  You  were  Second  Lieutenant  on  the  Harriet  Lane  ? 

A.  1  was,  sir. 

Q.  You  were  present  at  the  transfer  of  these  prisoners  from 
the  Minnesota  to  the  Harriet  Lane  ?  A.  Yes,  sir. 

Q.  You  were  with  them  to  New  York ''. 

A.  Yes  ;   but  I  was  ashore  when  they  were  delivered  here. 

Q.  You  accompanied  the  prisoners  on  the  voyage  ? 

A.  Yes,  sir. 

Q.  Where  did  the  Harriet  Lane  lie  at  Hampton  Koads,  in 
relation  to  the  Fort  and  Rip  Raps  ? 

A.  I  should  think  we  were  about  a  mile  from  the  Rip  Raps, 
and  probably  three-fourths  of  a  mile  from  the  Fort. 


OF   THE   SCHOONER   SAVANNAH.  63 

Q.  At  the  time  of  the  transhipment  ?    A.  Yes,  sir. 

Q.  The  transhipment  was  made  in  boats  ? 

A.  Yes,  sir, — in  a  boat  from  the  Minnesota.  I  believe  all 
came  in  one  boat. 

Q.  Where1  do  Hampton  Roads  commence,  as  you  under 
stand,  in  respect  to  where  the  Harriet  Lane  was? 

A.  I  think  they  commence  astern  of  where  we  lay  ;  a  little 
to  the  westward,  as  we  were  lying  off  of  Old  Point. 

Q.  !>>ok  upon  that  map  and  indicate,  by  a  pencil,  where 
the  vessels  lay,  without  any  reference  to  the  marks  already 
made  there — in  the  first  place  the  Minnesota  and  then  the  Har 
riet  Lane — when  the  transhipment  was  made,  taken  in  rela 
tion  to  the  Fort  and  the  Rip  Raps  ? 

Witness  marks  the  positions,  and  adds :  We  were  about 
half  a  mile  from  the  Minnesota,  I  should  say. 

J.  Buchanan  Henry  called  by  the  prosecution;  sworn. 
Examined  by  Mr.  Smith. 

Q.  In  June  and  July  last  you  were  United  States  Commis 
sioner?  A.  From  the  15th  of  June. 

Q.  [Producing  warrant.]     Is  that  your  signature  ? 

Counsel  for  prosecution  reads  warrant,  issued  by  J.  Bu 
chanan  Henry,  in  the  name  of  the  President,  addressed  to  the 
Marshal,  dated  June  26,  1861. 

(Objected  to  as  irrelevant.    Objection  overruled.) 

Q.  This  warrant  was  issued  by  you?     A.  It  was,  sir. 

Q.  On  an  affidavit  filed  with  you  ?     A.  Yes,  sir. 

Cross-examined. 

Q.  Against  all  these  prisoners  ?     A.  Yes,  sir. 

Defendants  take  exception  to  the  admission  of  the  testi 
mony. 

The  U.  S.  District  Attorney  was  about  to  call  the  Marshal, 
to  prove  that  he  arrested  the  prisoners. 

Defendants'  counsel  admitted  the  prisoners  were  arrested, 
under  this  warrant,  by  the  Marshal,  in  this  district. 

Mr.  Brady :  Perhaps  you  can  state,  Mr.  Smith,  where 
they  were  when  arrested  under  that  warrant  ? 

Mr.  Smith :  They  had  been  brought  to  the  Marshal's  office, 
I  think. 

Mr.  Brady :  They  were  in  the  Marshal's  office  when  ar 
rested  ? 

Mr.  Smith :  They  were  brought  to  the  Marshal's  office 
before  the  writ  was  served. 


64:  TRIAL   OF   THE   OFFICERS   AND   CREW 

Etlian  Allen  called  by  the  prosecution  ;  sworn.  Examined  by 

Mr.  Smith. 

Q.  You  are  Assistant  District  Attorney?     A.  I  am,  sir. 

Q.  And  were  in  June  last?     A.  Yes,  sir. 

Q.  Do  you  remember,  at  my  request,  calling  upon  the  pris 
oners  now  in  Court?  A.  I  do,  sir. 

Q.  Did  you  call  upon  every  one  ? 

A.  I  called  upon  all  the  prisoners  at  the  Tombs. 

Q.  Upon  each  one  separately  ? 

A.  I  called  upon  them  in  the  different  cells.  They  were 
confined  two  by  two. 

Q.  Had  you  previously  attended,  as  Assistant  District  Attor 
ney,  upon  the  examination  of  these  prisoners  ? 

A.  I  had,  upon  one  or  two  occasions. 

Q.  Were  the  prisoners  all  present  on  those  occasions  ? 

A.  They  were  present  once,  I  distinctly  recollect. 

Q.  Did  you  then  talk  with  them  ? 

A.  No,  sir;  I  addressed  myself  to  the  Commissioner  in 
adjourning  the  case. 

Q.  Was  there  any  examination  proceeded  with  ? 

A.  There  was  no  examination. 

Q.  State  what  you  said  to  the  prisoners,  the  object  of  your 
calling,  and  what  their  reply  was.  I  ask,  first,  did  you  make 
a  memorandum  at  the  time  ? 

A.  I  did,  sir. 

Q.  Was  it  made  at  the  very  time  you  asked  the  questions  ? 

A.  I  took  paper  and  pencil  in  hand,  and  asked  the  questions 
which  you  requested,  and  took  a  note  of  it. 

Q.  What  was  the  object  of  your  calling  upon  them? 

A.  To  ask  them  where  they  were  born ;  and,  if  born  else 
where,  were  they  naturalized. 

Q.  Did  you  state  for  what  purpose  you  made  this  inquiry  ? 

A.  I  do  not  recollect  that  I  made  any  statement  to  the 
prisoners  for  what  purpose  I  wanted  the  information.  I  told  them 
I  wanted  it.  They  seemed  to  recognize  me  as  Assistant  Dis 
trict  Attorney ;  and  as  to  those  that  did  not  recognize  me,  I 
told  them  I  was  Assistant  District  Attorney.  The  memorandum 
produced  is  the  one  I  made  at  the  time. 

Q.  Referring  to  that,  give  the  statements  that  were  made 
by  each  of  the  prisoners  in  reply  to  your  questions  ? 

A.  Henry  Cashman  Howard  said  he  was  born  in  Beaufort, 
North  Carolina: 

Charles  Sydney  Passalaigue  said  he  was  born  in  Charleston, 
South  Carolina. 

Joseph  Cruse  del  Carno  said  he  was  born  in  Manilla,  in  the 
Chinese  Seas,  and  was  never  naturalized. 

Thomas  Harrison  Baker  said  he  was  born  in  Philadelphia. 


OF   THE    SCHOONER    SAVANNAH.  65 

John  Harleston  said  lie  was  born  in  Anderson  District,  or 
County,  in  South  Carolina. 

Patrick  Daly  was  born  in  Belfast,  Ireland.    Has  never  beet 
naturalized. 

William  C.  Clarke  born  in  Hamburg,  Germany.  Never 
naturalized.  ' 

Henry  Oman  born  in  Canton.     Never  was  naturalized. 

Martin  Galvin  born  in  the  County  Clare,  Ireland.  Not 
naturalized. 

Richard  Palmer  born  in  Edinburgh.     Never  naturalized. 

Alexander  C.  Coid  was  born  in  Galloway,  Scotland.  Waf, 
naturalized  in  Charleston, — about  1854  or  1855,  he  thinks. 

John  Murphy  born  in  Ireland.     Never  naturalized. 

Mr.  Brady :  We  will  insist,  hereafter,  that  this  admission 
of  naturalization  cannot  be  used  at  all. 

Mr.  Evarts  :   We  will  concede  that. 

By  Mr.  Smith :  Do  you  remember  asking  the  prisoners 
for  their  full  names  ? 

A.  I  asked  them  particularly  for  their  full  names. 

Q.  Are  they  correctly  stated  in  the  indictment? 

A.  They  are  stated  from  the  memorandum  which  I  then 
took  ;  that  is  my  only  means  of  recollection. 

Mr.  Smith:  The  Assistant  District  Attorney  desires  me 
to  state  that  he  did  not  know  that  he  was  to  be  called  as  a  wit 
ness  in  the  case;  that  if  he  had  had  any  idea  that  he  would  be 
called  as  a  witness,  he  would  not  have  made  the  visit.  Yester 
day,  for  the  first  time,  he  ascertained  that  he  would  be  called. 
I  would  also  state  that  I  did  not  send  him  there  for  the  pur 
pose  ot  making  him  a  witness,  but  with  the  object  of  obtaining 
particulars  which  might  render  the  allegations  in  the  indict 
ment  entirely  accurate  in  respect  to  every  detail. 

Mr.  Smith  added :  I  now  close  the  case  for  the  prosecution. 
6 


TRIAL    OF   THE    OFFICERS    AND    CREW 

OPENING  FOR  THE  DEFENCE. 
Mr.  LAROCQUE  opened  the  case  for  the  defence.     He  said  : 

May  it  please  the  Court,  and  you,  Gentlemen  of  the  Jury  : 

We  have  now  reached  that  stage  in  this  interesting  trial 
where  the  duty  has  been  assigned  to  me,  by  my  associates  in 
this  defence,  of  presenting  to  you  the  state  of  facts  and  the  rules 
of  law  on  which  we  expect  to  ask  from  you  an  acquittal  of 
these  prisoners.     I  could  wish   that  it  had  been  assigned  to 
some  one  more  able  to  present  it  to  you  than  myself,  for  I  feel 
the  weight  of  this  case  pressing  upon  me,  from  various  consid 
erations  connected  with  it,  in  a  manner  almost  overpowering. 
I  think  that  we  have  proceeded  far  enough  in  this  case  for  you 
to  have  perceived  that  it  is  one  of  the  most  interesting  trials 
that  ever  took  place  on  the  continent  of  America,  if  not  in  the 
civilized  world.    For  the  first  time,  certainly  in  this  controversy, 
twelve  men  are  put  on  trial  for  their  lives,  before  twelve  other 
men,  as  pirates  and — as  has  been  well  expressed  to  you  by  the 
learned  District  Attorney  who  opened  this  case  on  behalf  of 
the  prosecution — as  enemies  of  the  human  race.     If  you  have 
bad  time,  in  the  exciting  progress  of  this  trial,  to  reflect  in 
your  own  minds  as  to  what  the  import  of  these  words  was,  it 
must  certainly,  ere  this,  have  occurred  to  you  that,  in  regard 
to  these  prisoners,  whatever  may  be  the  legal  consequences  of 
the  acts  charged  upon  them,  it  was  a  misapplication  of  the 
term.     Look  for  a  moment,  gentlemen,  first,  at  the  position  of 
things  in  our  country  under  which  this  trial  takes  place.     All 
these  prisoners  come  before  you  from  a  far  distant  section  of 
the  country.     Some  of  them  were  not  born  there — some  of 
them  were.     At  the  time  when  these  events  occurred  all  of  the 
prisoners  lived  there,  and  were  identified  with  that  country, 
with  its  welfare,  with  its  Government,  whatever  it  was.     They 
had  there  their  homes,  their  families,  everything  which  at 
taches  a  man  to  the  spot  in  which  he  lives.     Those  of  them 
who  had  not  been  born  in  America  had  sought  it  as  an  asy 
lum.     They  had  come  from  dis  ant  regions  of  the  earth — some 
from  the  Chinese  Sea  and  the  remote  East — because  they  had 
been  taught  there  that  America  was  the  freest  land  on  the 
globe.     They  had  lived  there  for  years.     Suddenly  they  had 
seen  the  country  convulsed  from  one  end  to  the  other.     They 
had  seen  hostile  armies  arrayed  against  each  other,  the  com 
batants  being  for  the  most  part  divided  by  geographical  lines 
as  to  the  place  where  they  were  born  or  as  to  the  State  in 
which  they  lived.     This  very  morning  a  newspaper  in  the  city 


OF   THE    SCHOONER   SAVANNAH.  67 

of  New  York  estimates  the  numbers  thus  arrayed  in  hostility 
against  each  other  at  no  less  than  seven  hundred  thousand 
souls.     These  prisoners  have  the  misfortune,  as  I  say,  of  being 
placed  on  their  trial  far  from  their  homes.     They  have  been 
now  in  confinement  and  under  arrest  on  this  charge  for  some 
four  or  five  months.     During  that  whole  period  they  have  had 
no  opportunity  whatever  of  communicating  with  their  friends 
or  relatives.     Intercourse  has  been  cut  off.     They  have  had  no 
opportunity  of  procuring  means  to  meet  their  necessary  ex 
penses,  or  even  to  fee  counsel  in  their  defence.     Without  the 
solace  of  the  company  of  their  families,  immured  in  a  prison 
among  those  who,  unfortunately,  from  friends  and  fellow-coun 
trymen  have  become  enemies,  they  are  now  placed  in  this 
Court  on  trial  for  their  lives.     You  will  certainly  reflect,  gen 
tlemen,  that  it  was  not  for  a  case  of  this  kind  that  any  statute 
punishing  the  crime  of  piracy  was  ever  intended  to  be  enacted. 
You  will  reflect,  when  you  come  to  consider  this  case,  after  the 
evidence  shall  have  been  laid  before  you,  and  after  you  have 
received  instructions  from  the  Court,  that  however  by  techni 
cal  construction  our  ingenious  friends  on  the  other  side  may 
endeavor  to  force  on  your  minds  the  conviction  that  this  was  a 
case  intended  to  be  provided  for  by  statutes  passed  in  the  year 
1T90,  and  by  statutes  passed  in  the  year  1820, — it  is  a  mon 
strous  stretch  of  the  provisions  of  those  statutes  to  ask  for  a 
conviction  in  a  case  of  this  kind.     And  I  may  be  permitted, 
with  very  great  respect  for  the  constitutional  authorities  of 
our  Government,  to  which  we  all  owe  our  allegiance  and  re 
spect,  to  wonder  that  this  case  has  been  brought  for  trial  before 
you.     I  cannot   help,  under  the    circumstances  surrounding 
these  trials — for  while  you  are  sitting  here,  another  jury  is 
passing  on  a  similar  case  in  the  neighboring  City  of  Philadel 
phia — attributing  the  determination  of  the  Government  to  sub 
mit  these  cases  to  the  judicial  tribunals  at  this  time  to  a  desire 
to  satisfy  the  mind  of  the  community  itself,  which  has  been 
naturally  excited  on  this  subject,  that  these  men  are  not  pirates 
within  the  meaning  of  the  law.     And  I  do  most  sincerely  hope, 
for  the  credit  of  our  Government,  that  that  is  the  object  which 
it  has  in  view,  and  that  the  heart  of  every  officer  of  the  Gov 
ernment,  at  Washington  or  elsewhere,  will  be  most  rejoiced  at 
the  verdict  of  acquittal,  which,  I  trust,  on  every  consideration, 
you  will  pronounce.     We  all  know  that  in  a  time  of  civil  com 
motion  and  civil  war  like  this,  the  minds  of  the  people,  partic 
ularly  at  the  incipient  stages  of  the  controversy,  become  terri 
bly  excited  and  aroused.     We  could  not  listen,  at  the  outbreak 
of  these  commotions,  to  any  other  name  but  that  of  pirate  or 
traitor,  as  connected  with  those  arrayed  against  our  Govern 
ment  and  countrymen.     One  of  the  misfortunes  of  a  time  of 


68  TRIAL    OF   THE    OFFRKK.S    AND    CRKW 

popular  excitement  like  this  is,  that  it  pervades  not  only  the 
minds  of  the  community,  but  reaches  the  public  halls  of  legis 
lation,  and  the  executive  and  administrative  departments  of 
the  Government.  And  it  is  no  disrespect,  even  to  the  Chief 
Magistrate  of  the  country  to  say,  that  he  might,  in  a  time  like 
this,  put  forward  proclamations  and  announce  a  determination 
to  do  what  his  more  sober  judgment  would  tell  him  it  was  im 
prudent  to  announce  his  intention  of  doing.  You  will  all 
probably  recollect  that  when  this  outbreak  occurred  the  Gov 
ernment  at  Washington  announced  the  determination  of  treat 
ing  those  who  might  be  captured  on  board  of  privateers  fitted 
out  in  the  Confederate  States  as  pirates.  Such  an  announce 
ment  once  made,  it  is  difficult  to  depart  from.  And  therefore 
I  do  most  sincerely  hope  that  the  administration  in  Washing 
ton,  as  my  heart  tells  me  must  be  the  case,  are  looking  at  these 
trials  in  progress  here  and  in  Philadelphia,  with  an  earnest  de 
sire  that  the  voice  of  the  Juries  shall  be  the  voice  of  acquittal, 
— thus  disembarrassing  the  Government  of  the  trammels  of  a 
proclamation  which  it  were  better,  perhaps,  had  never  been 
issued.  This  civil  war  had  at  that  time  reached  no  such  pro 
portions  as  those  which  it  has  since  acquired.  It  was  then  a 
mere  beginning  of  a  revolution.  The  cry  was,  that  Washing 
ton  was  in  danger.  There  were  no  hostile  forces  arrayed  on 
the  opposite  sides  of  the  Potomac.  There  was  a  fear  that  they 
would  soon  make  their  appearance ;  and  there  was  also  an  earn 
est  hope — which  I  lament  most  deeply  has  not  been  realized 
— that  that  outbreak  would  be  stopped  in  its  commencement, 
and  that  no  armies  approaching  to  the  proportions  of  those 
which  have  since  been  in  hostile  conflict  would  be  arrayed  on 
the  field  of  battle.  Look  at  the  state  of  things  now.  Scarcely 
a  day  elapses  on  which  battles  are  not  taking  place,  from  one 
end  to  the  other  of  this  broad  continent — in  Virginia,  Ken 
tucky,  Missouri,  and  other  States — and  where  the  opposing 
forces  are  not  larger  than  those  that  met  in  any  battle  of  the 
Revolution  which  gave  this  country  its  independence.  Does 
humanity j  which  rules  war  as  well  as  peace,  permit  that  while 
whole  States,  forming  almost  one  half  of  the  Confederacy;  have 
arrayed  themselves  as  one  man — for  aught  we  know  to  the 
contrary — while  they  think,  no  matter  how  mistakenly,  that 
they  have  grievances  to  be  redressed,  and  that  they  have  a 
right  to  exercise  that  privilege  of  electing  their  own  Govern 
ment,  which  we  claimed  for  ourselves  in  the  day  of  our  own 
Revolution — does  humanity,  I  say,  permit,  in  such  a  state  of 
things,  one  side  or  the  other  to  treat  its  opponents  as  pirates 
and  robbers,  as  enemies  of  the  human  race  ?  Gentlemen,  our 
brave  men  who  are  fighting  our  battles  on  land  and  sea  have  a 
deep  interest  in  this  question  ;  and  if  the  votes  of  our  whole 


OK    TIIK    -C!1<H>M.R    SAVANNAH.  69 

army  could  be  taken  on  the  <jucsti<>n  of  whether,  as  a  matter 
of  State  policy,  these  men  should  IK*  treated  as  pirates  and 
robbers,  I  believe,  in  my  heart,  that  an  almost  unanimous  vote 
would  go  up  from  its  ranks  not  to  permit  such  a  state  of  things 
to  take  place. 

I  wish  to  say  a  word  here,  gentlemen,  preliminarily,  on 
another  subject,  and  that  is,  what  the  duty  and  right  of  coun 
sel  is  on  a  trial  of  this  kind.  I  hold  the  doctrine  that  counsel, 
when  he  appears  in  Court  to  defend  the  life  of  one  man,  much 
less  the  lives  of  twelve  men,  is  the  alter  ego  of  his  clients — 
that  he  has  no  trammels  on  his  lips,  and  that  his  conscience, 
and  his  duty  to  God,  and  to  his  profession,  must  direct  him  in 
his  best  efforts  to  save  the  lives  of  his  clients, — and  that  it  be 
comes  his  duty;  regardless  of  all  other  considerations,  except 
adherence  to  truth  and  the  laws  of  rectitude,  to  present  every 
argument  for  his  clients  which  influenced  their  minds  when 
they  embarked  in  the  enterprise  for  which  they  are  placed 
before  the  Jury  on  trial  for  their  lives.  It  is  not  the  fault  of 
counsel,  in  a  case  of  this  kind,  if  he  is  obliged  to  call  the  atten 
tion  of  the  Jury  to  the  past  history  of  his  own  country,  to  the 
cotemporaneous  expositions  of  its  Constitution,  to  the  decisions 
of  its  Courts  of  Judicature,  and  of  the  highest  Court  of  the  Union, 
which  have  laid  clown  doctrines  with  reference  to  the  Constitu 
tion  of  the  Government,  which  are  accepted  at  the  present 
day,  entirely  incompatible  with  the  success  of  this  prosecution. 
In  doing  so,  you  will  certainly  perceive  that,  however  much 
these  men  011  trial  for  their  lives  may  have  been  deceived  and 
deluded,  as  I  sincerely  think  they  have  been  to  a  very  great 
extent,  and,  as  was  frankly  admitted  by  the  learned  counsel 
who  opened  the  case  for  the  prosecution,  that  at  least,  there 
was  the  strongest  excuse  for  that  deception  and  delusion  among 
those  of  them  who  had  read  the  Constitution  of  their  Govern 
ment,  who  had  read  its  Declaration  of  Independence,  who  had 
read  the  cotemporaneous  exposition  of  its  Constitution,  put 
forward  by  the  wisest  of  the  men  who  framed  it,  and  on  the 
honeyed  accents  of  whose  lips  the  plain  citizens  of  the  States 
reposed  when  they  adopted  the  Constitution.  It'  it  had  been 
their  good  fortune  to  be  familiar  with  the  decisions  of  its 
Courts,  they  had  learned  what  the  Supreme  Court  had  said  with 
reference  to  the  sovereign  rights  of  the  States,  and  with  refer 
ence  to  the  strict  limit  and  measure  of  power  which  they  had 
conceded  to  the  General  Government,  and  .there  was,  at  least, 
a  very  strong  excuse  for  their  following  those  doctrines,  how 
ever  unpopular  they  may  have  become  in  a  later  day  of  the 
Republic. 

One  of  the  reasons  why  I  most  regret  that  the  Government 
has  thought  fit  to  force  these  cases  to  trial  at  the  present  time 


70  TKIAL    OF   THE   OFFICERS    AND    CREW 

is,  that  it  forces  the  counsel  for  the  prisoners,  in  the  solemn  dis 
charge  of  their  duty  to  their  clients,  whose  lives  hang  in  the  bal 
ance,  to  call  the  attention  of  the  Jury  and  the  attention  of  the 
public  to  those  doctrines,  doing  which,  under  other  circumstances, 
might  be  considered  as  a  needless  interference  with  the  efforts 
of  the  Government  to  restore  peace  to  the  country.  But,  as  I 
say,  I  hold  that  our  clients  in  this  case  have  a  right  to  all  the 
resources  of  intelligence  with  which  it  has  pleased  God  to 
bless  their  counsel.  They  have  a  right  to  every  pulsation  of 
their  hearts,  and  I  do  not  know  that  I  can  sum  up  the  whole 
subject  in  more  appropriate  language  than  that  used  by  the 
Marquis  of  Beccaria,  which  was  quoted  by  John  Adams  on 
the  trial  of  some  British  soldiers  in  Boston,  who,  in  a  time  of 
great  public  excitement,  had  shot  some  citizens,  and  were 
placed  on  trial  for  their  lives  before  a  Jury  in  Boston.  He 
quoted  and  adopted  on  that  occasion,  as  his  own,  these  memo 
rable  words  of  that  great  philanthropist :  "  If  I  can  be  but  the 
instrument  of  saving  one  human  life,  his  blessing  and  tears  of 
gratitude  will  be  a  sufficient  consolation  to  me  for  the  con 
tempt  of  all  mankind."  I  hold,  with  John  Adams,  that  coun 
sel  on  a  trial  like  this  has  no  right  to  let  any  earthly  considera 
tion  interfere  with  the  full  and  free  discharge  of  his  duty  to  his 
client ;  and  in  what  I  have  to  say,  and  in  my  course  on  this 
trial,  I  will  be  actuated  by  that  feeling,  and  by  none  other. 
And,  gentlemen,  I  love  my  country  when  I  say  that;  I  feel 
as  deep  a  stake  in  her  prosperity  as  does  any  man  within  the 
hearing  of  my  voice,  and  as  deep  a  stake  as  any  man  who  lives 
under  the  protection  of  her  flag. 

The  Jury  have  a  great  and  solemn  duty  to  discharge  on 
this  occasion.  They  have  the  great  and  solemn  duty  to  dis 
charge  of  forgetting,  if  possible,  that  they  are  Americans, 
and  of  thinking,  for  the  moment,  that  they  have  been  trans 
formed  into  subjects  of  other  lands  ;  of  forgetting  that  there  is 
a  North  or  a  South,  an  East  or  a  West,  and  of  remembering 
only  that  these  twelve  men  are  in  peril  of  their  lives,  and  that 
this  Jury  is  to  judge  whether  they  have  feloniously  and  pirati- 
cally,  with  a  criminal  intent,  done  the  act  for  which  it  is 
claimed  their  lives  are  forfeited  to  their  country.  I  wish  to 
dispel  from  the  minds  of  the  Jury,  at  the  outset  of  this  case,  an 
illusion  which  has  been  attempted  to  be  produced  on  them, 
with  no  improper  motive,  I  am  sure,  by  the  counsel  who 
opened  the  case  on  the  part  of  the  Government — that  this  trial 
is  a  mere  matter  of  form.  I  tell  you,  gentlemen,  that  it  is  a 
trial  involving  the  lives  of  twelve  men,  and  this  Jury  are  bound 
to  assume,  from  the  beginning  to  the  end  of  the  case,  that  if 
their  verdict  shall  pronounce  these  men  guilty  of  the  crime  of 
piracy,  with  which  they  are  charged,  every  one  of  them  will  as 


OF   THE    SCHOONER    SAVANNAH.  71 

surely  terminate  bis  life  on  the  scaffold,  as  the  sun  will  rise  OH. 
the  morrow  of  the  day  on  which  the  verdict  shall  be  pro 
nounced.  We  have  nothing  to  do  with  what  tbe  Government 
in  its  justice  and  clemency  may  see  n't  to  do  after  that  verdict 
has  been  pronounced.  We  are  bound  to  believe  that  the  Gov 
ernment  does  not  put  these  men  upon  their  trial  with  an  inten 
tion  to  make  the  verdict,  if  it  shall  be  one  of  guilty,  a  mere 
idle  mockery.  I,  for  one,  while  I  love  my  country,  and  wish 
its  Government  to  enjoy  the  respect  of  the  whole  world,  would 
not  be  willing  to  believe  that  it  would  perform  a  solemn  farce 
of  that  kind ;  and,  gentlemen,  as  you  value  the  peace  and 
repose  of  your  own  consciences,  you  will,  in  the  progress  of 
this  trial,  from  its  beginning  to  its  end,  look  on  it  in  this  light, 
and  in  none  other. 

Now,  gentlemen,  what  is  the  crime  of  piracy,  as  we  have 
all  been  taught  to  understand  it  from  our  cradle  ?  My  learned 
friend  has  given  one  definition  of  what  a  pirate  is,  by  saying 
that  he  is  the  enemy  of  the  human  race.  And  how  does  his 
crime  commence  ?  Is  it  blazoned,  before  he  starts  on  his  wicked 
career,  in  the  full  light  of  the  sun,  or  is  it  hatched  in  secret! 
Does  it  commence  openly  and  frankly,  with  the  eyes  of  his 
fellow-citizens  looking  on  from  the  time  that  the  design  is  con 
ceived,  or  does  it  originate  in  the  dark  forecastle  of  some  vessel 
on  the  seas,  manned  by  wicked  men,  to  whom  murder  and  rob 
bery  have  been  familiar  from  their  earliest  days,  and  who 
usually  commence  by  murdering  the  crew  of  the  vessel,  the 
safety  of  which  has  been  partly  entrusted  to  them?  And  when 
the  first  deed  of  wickedness  has  been  done  which  makes  pirates 
and  outcasts  of  the  men  who  perpetrated  it,  what  is  their  career 
from  that  moment  to  the  time  when  they  end  their  lives,  prob 
ably  on  the  scaffold  ?  Is  it  not  one  of  utter  disregard  to  the 
laws  of  God  and  man,  and  to  those  of  humanity  ?  Is  it  not  a 
succession  of  deeds  of  cruelty,  of  rapine,  of  pillage,  of  wanton 
destruction?  Who  ever  heard  of  pirates  who,  in  the  first 
place,  commenced  the  execution  of  their  design  by  pablic 
placards  posted  in  the  streets  of  a  populous  city  like  Charles 
ton,  approved  of  by  their  fellow-citizens  of  a  great  and  popu 
lous  city,  and  not  only  by  them,  but  by  the  people  of  ten  great 
and  populous  States  ?  And  who  ever  heard  of  pirates  who, 
coming  upon  a  vessel  that  was  within  the  limits  of  the  commis 
sion  under  which  they  were  acting,  took  her  as  a  prize,  with 
an  apology  to  her  Captain  for  the  necessity  of  depriving  him  of 
his  property,  and  claiming  to  act  under  the  authority  of  ten 
great  and  populous  States,  and  under  that  authority  alone! 
And  who  ever  heard  of  pirates  doing  what  has  been  testified  to 
in  this  case  by  the  witnesses  for  the  Government, — taking  one 
ship  because  she  belonged  to  the  enemies  of  the  Confederate 


12  TRIAL    OF   THE    OFFICERS    AND    CREW 

States,  to  which  they  sincerely  believed  they  owed  the  duty  of 
allegiance,  and  passing  immediately  under  the  stern  of  another 
vessel,  because  they  knew  by  her  build  and  appearance  that 
she  was  a  British  vessel,  and  not  an  enemy  of  their  country,  as 
they  believed  ? 

But,  gentlemen,  the  difficulties  with  which  the  prosecution 
had  to  contend,  in  making  out  this  case,  are  too  great  to  be  lost 
sight  of;  and  the  Jury  must  certainly  have  seen  how  utterly 
preposterous  it  is  to  characterize  as  piracy  acts  of  this  kind. 
Who  ever  heard  of  a  pirate  who,  having  seized  a  prize,  put  a 
prize-crew  on  board  of  her,  sent  her  home  to  his  native  port 
— a  great  and  civilized  city,  in  a  great  and  populous  country — 
to  be  submitted  to  the  adjudication  of  the  Courts  in  that  city, 
und  to  be  disposed  of  as  the  authorities  of  his  home  should 
direct?  I  beg  to  call  your  attention  to  the  facts  that  have  been 
brought  out  on  the  testimony  for  the  prosecution  itself — that,  in 
regard  to  this  vessel,  instead  of  her  crew  having  been  murdered 
— instead  of  helpless  women  and  children  having  been  sent  to 
a  watery  grave,  after  having  suffered,  perhaps,  still  greater 
indignities — that  not  a  hair  of  the  head  of  any  one  was  touched, 
— that  not  a  man  suffered  a  wound  or  an  indignity  of  any 
kind — that  they  were  sent,  as  prit oners  of  war,  into  the  neigh 
boring  port  of  Georgetown,  where,  in  due  time,  by  decree  of  a 
court,  the  vessel  was  condemned  and  sold — and  the  prisoners, 
having  been  kept  in  confinement  some  time  as  prisoners  of 
war,  were  released,  and  have  been  enabled  to  come  into  Court 
and  testify  before  you. 

Comparing  this  case,  gentlemen,  with  the  cases  which  are 
constantly  occurring  in  the  land,  what  earthly  motive  can  you 
conceive,  on  the  part  of  the  Government,  for  having  made  the 
distinction  between  these  poor  prisoners,  taken  on  board  of  this 
paltry  little  vessel  of  40  or  50  tons,  and  the  great  bands  in 
arms  in  all  parts  of  the  country?  Look  what  occurred  a  little 
while  ago  in  Western  Virginia,  where  a  large  force  of  men,  in 
open  arms  against  the  Government,  who  had  been  carrying 
ravage  and  destruction  through  that  populous  country,  and  over 
all  parts  of  it,  were  captured  as  prisoners.  Were  any  of  those 
men  sent  before  a  court,  to  be  tried  for  their  lives?  Did  not 
the  commanding  officer  of  the  forces  there,  acting  under  the 
authorization,  and  with  the  approval,  of  the  Government,  re 
lease  every  one  of  those  men,  on  his  parole  of  honor  not  to  bear 
arms  any  more  against  the  country  ?  And  what  earthly  motive 
can  be  conceived  for  making  the  distinction  which  is  attempted 
to  be  made  between  these  men  and  those  ?  Shall  it  be  said,  to 
the  disgrace  of  our  country — for  it  would  be  a  disgrace  if  it 
eould  be  justly  said — that  we  had  not  courage  and  confidence 
enough  in  our  own  resources  to  believe  that  we  would  he  able 


OF    THE    SCHOONER    SAVANNAH.  73 

to  cope  with  these  adversaries  in  the  field  in  fair  and  equal 
warfare  ?  Gentlemen,  I  think  it  would  be  a  cowardly  act, 
which  would  redound  to  the  lasting  disgrace  of  the  country,  t»> 
have  it  said,  one  century  or  two  centuries  hence,  that,  in  this 
great  time  of  our  country's  troubles  and  trials,  eighteen  States 
of  this  Confederacy,  infinitely  the  most  populous,  infinitely  the 
most  wealthy,  abounding  in  resources,  with  a  powerful  army 
and  navy,  were  obliged  to  resort  to  the  halter  or  the  ax  for 
the  purpose  of  intimidating  those  who  were  in  arms  against 
them.  I  do  not  think  that  any  one  of  this  Jury  would  be  wil 
ling  to  have  such  a  thing  said. 

Aow,  gentlemen,  with  regard  to  the  conduct  of  these  men, 
an  impression  has  been  attempted  to  be  created  on  your  minds 
by  one  circumstance,  and  that  is,  that  at  the  time  of  the  cap 
ture  of  the  Joseph  by  the  Savannah  the  American  flag  was 
hoisted  on  board  the  Savannah,  and  that  the  Joseph  came 
down  to  her,  and  permitted  her  to  approach  from  the  false 
security  and  confidence  occasioned  by  that  circumstance.  The 
time  has  now  arrived  to  dispel  the  illusion  from  your  mind  that 
there  was  anything  reprehensible  in  that,  or  anything  in  it  not 
warranted  by  the  strictest  rules  of  honor  and  of  naval  warfare. 
Why,  gentlemen,  I  could  not  give  you  a  more  complete  par 
allel  on  that  subject  than  one  which  occurred  at  the  time  of 
the  chase  of  the  Constitution  by  a  British  fleet  of  men-of-war, 
and  the  escape  of  the  Constitution  from  which  fleet  at  that 
time  reflected  such  lasting  honor  on  our  country  and  her 
naval  history.  You  will  all  recollect  that  the  Constitution, 
near  the  coast  of  our  country,  fell  in  with  and  was  chased  for 
several  days  by  a  large  British  fleet.  Let  me  read  to  you  one 
short  sentence,  showing  what  occurred  at  that  time.  I  read 
from  Cooper's  Naval  History  : 

"  The  scene,  on  the  morning  of  this  day,  was  very  beautiful,  and  of  great 
interest  to  the  lovers  of  nautical  exhibitions.  The  weather  was  mild  and 
lovely,  the  sea  smooth  as  a  pond,  and  there  was  quite  wind  enough  to  remove 
the  necessity  of  any  of  the  extraordinary  means  of  getting  ahead  that  had 
been  so  freely  used  during  the  previous  eight  and  forty  hours.  All  the  Eng 
lish  vessels  had  got  on  the  same  tack  with  the  Constitution  again,  and  the 
five  frigates  were  clouds  of  canvas,  from  their  trucks  to  the  water.  Includ 
ing  the  American  ship,  eleven  sail  were  in  sight ;  and  shortly  after  a  twelfth 
appeared  to  windward  ;  that  was  soon  ascertained  to  be  an  American  mer 
chantman.  But  the  enemy  were  too  intent  on  the  Constitution  to  regard 
anything  else,  and  though  it  would  have  been  easy  to  capture  the  ships  to 
leeward,  no  attention  appears  to  have  been  paid  to  them.  With  a  view, 
howeier,  to  deceive  the  ship  to  windward,  they  hoisted  American  colors,  when 
the  Constitution  set  an  English  ensign,  by  way  of  warning  the  stranger  to 
keep  aloof. 

After  that,  1  hope  we  will  hear  no  more  about  the  Savan 
nah  having  hoisted  the  American  flag  for  the  purpose  of  induc 
ing  the  Joseph  to  approach  her. 


74:  TRIAL   OF   THE   OFFICERS   AND   CREW 

It  now  becomes  my  duty,  gentlemen,  to  call  your  attention, 
very  briefly,  to  the  grounds  on  which  the  prosecution  rests  this 
case.  There  are  two  grounds,  and  I  will  notice  them  in  their 
order.  The  first  is,  that  this  was  robbery.  "Well,  I  have  had 
occasion,  already,  in  what  1  have  said  to  yon,  to  call  your  at 
tention  to  some  of  the  points  that  distinguish  this  case  from 
robbery.  I  say  it  was  not  robbery,  because,  in  the  first  place, 
one  of  the  requisites  of  robbery  on  the  sea?,  which  is  called 
piracy,  is,  that  it  shall  be  done  with  a  piratical  and  felonious 
intent.  The  intent  is  what  gives  character  to  the  crime  ;  and 
the  point  that  we  shall  make  on  that  part  of  the  case  is  this, 
that  if  these  men,  in  the  capture  of  the  Joseph  (leaving  out 
of  view  for  the  present  the  circumstance  of  their  having 
acted  under  a  commission  from  the  Confederate  States),  acted 
under  the  belief  that  they  had  a  right  to  take  her,  there  was 
not  the  piratical  and  felonious  intent,  and  the  crime  of  robbery 
was  not  committed.  I  will  very  briefly  call  your  attention  to 
a  few  authorities  on  that  subject.  One  of  the  most  standard 
English  works,  and  the  most  universally  referred  to  on  this 
subject  of  robberies,  is  Hale's  Pleas  of  the  Crown.  Hale  says : 

"  As  it  is  cepit  and  asportamt  so  it  must  be  felonice  or  animo  furandi, 
otherwise  it  is  not  felony,  for  it  is  the  mind  that  makes  the  taking  of  another's 
goods  to  be  a  felony,  or  a  bare  trespass  only ;  but  because  the  intention  and 
mind  are  secret,  they  must  be  judged  by  the  circumstances  of  the  fact,  and 
though  these  circumstances  are  various  and  may  sometimes  deceive,  yet 
regularly  and  ordinarily  these  circumstances  following  direct  in  this  case. 

"If  A,  thinking  he  hath  a  title  to  the  horse  of />',  seizeth  it  as  his  own,  or 
supposing  that  B  holds  of  him,  distrains  the  horse  of  B  without  cause,  this 
regularly  makes  it  no  felony,  but  a  trespass,  because  there  is  a  pretence  of 
title ;  but  yet  this  may  be  but  a  trick  to  color  a  felony,  and  the  ordinary  dis 
covery  of  a  felonious  intent  is,  if  the  party  does  it  secretly,  or  being  charged 
with  the  goods,  denies  it. 

"  But  in  cases  of  larceny,  the  variety  of  circumstances  is  so  great,  and  the 
complications  thereof  so  weighty,  that  it  is  impossible  to  prescribe  all  the  cir 
cumstances  evidencing  a  felonious  intent ;  on  the  contrary,  the  same  must  be 
left  to  the  due  and  attentive  consideration  of  the  Judge  and  Jury,  wherein  the 
best  rule  is,  in  dubiix,  rather  to  incline  to  acquittal  than  conviction." 

The  next  authority  on  that  subject  to  which  1  will  refer  you 
is  2d  Eastfs  Pleas  of  the  Grownup.  649.  The  passage  is : 

"  And  here  it  may  be  proper  to  remark,  that  in  any  case,  if  there  be  any 
fair  pretence  of  property  or  right  in  the  prisoner,  or  if  it  be  brought  into  doubt 
at  all,  the  court  will  direct  an  acquittal;  for  it  is  not  Jit  that  such  disputes 
should  be  settled  in  a  manner  to  bring  men's  Ikes  into  jeopardy. 

"The  owner  of  ground  takes  a  horse  damage  feasa?it,  or  a  lord  seizes  it  as 
an  estray,  though  perhaps  without  title;  yet  these  circumstances  explain  the 
intent,  and  show  that  it  was  not  felonious,  unless  some  act  be  done  which 
manifests  the  contrary :  as  giving  the  horse  new  marks  to  disguise  him,  or 
altering  the  old  ones  ;  for  these  are  presumptive  circumstances  of  a  thievish 
intent." 


OF   THE   SCHOONER   SAVANNAH.  75 

I  call  attention  also  to  the  case  of  Rex  vs.  Hall,  3d  Carring- 
ton  <&  Payne,  409,  which  was  a  case  before  one  of  the  Barons 
of  the  Exchequer  in  England.  It  was  an  indictment  for  rob 
bing  John  Green,  a  gamekeeper  of  Lord  Ducie,  of  three  bare- 
wires  and  a  pheasant.  It  appeared  that  the  prisoner  had  set 
three  hare-wires  in  a  field  belonging  to  Lord  Ducie,  in  one  of 
which  this  pheasant  was  caught ;  and  that  Green,  the  game 
keeper,  seeing  this,  took  up  the  wires  and  pheasant,  and  put 
them  into  his  pocket ;  and  it  further  appeared  that  the  pris 
oner,  soon  after  this,  came  up  and  said,  "  Have  you  got  my 
wires?"  The  gamekeeper  replied  that  he  had,  and  a  pheasant 
that  was  caught  in  one  of  them.  The  prisoner  asked  the  game 
keeper  to  gisre  the  pheasant  and  wires  up  to  him,  which  the 
gamekeeper  refused  ;  whereupon  the  prisoner  lifted  up  a  large 
stick,  and  threatened  to  beat  the  camekeeper's  brains  out  if 
he  did  not  give  them  up.  The  gamekeeper,  fearing  violence, 
did  so. 

Maclean,  for  the  prosecution,  contended — 

"  That,  by  law,  the  prisoner  could  have  no  property  in  either  the  wires  or 
the  pheasant ;  and  as  the  gamekeeper  had  seized  them  for  the  use  of  the  Lord 
of  the  Manor,  under  the  statute  5  Ann,  c.  14,  s.  4,  it  was  a  robbery  to  take 
them  from  him  by  violence." 

Yaughan,  B.,  said  : 

41 1  shall  leave  it  to  the  Jury  to  say  whether  the  prisoner  acted  on  an  im 
pression  that  the  wires  and  pheasant  were  his  property,  for,  however  he 
might  be  liable  to  penalties  for  having  them  in  his  possession,  yet,  if  the  Jury 
think  that  he  took  them  under  a  bonafide  impression  that  he  was  only  getting 
back  the  possession  of  his  own  property,  there  is  no  animus  fur  andi^  and  I 
am  of  opinion  that  the  prosecution  must  fail. 

"  Verdict— Not  guilty." 

Without  detaining  the  Court  and  Jury  to  read  other  cases, 
I  will  simply  give  your  honors  a  reference  to  them.  I  refer 
to  the  King  vs.  Knight,  cited  in  *ld  Eastf  s  Pleas  of  the  Crown, 
p.  510,  decided  by  Justices  Gould  and  Butler  ;  the  case  of  the 
Queen  vs.  Boden,  1st  Carrington  and  Kirwan,  p.  395 ;  and 
for  the  purpose  of  showing  that  this  is  the  same  rule  which  has 
been  applied  by  the  Courts  of  the  United  States,  in  these  very 
cases  of  piracy,  I  need  do  nothing  more  than  read  a  few  lines 
from  a  case  cited  by  the  counsel  for  the  prosecution  in  opening 
the  case  of  the  United  States  vs.  Tully,  1st  GallisonJs  Circuit 
Court  Reports,  247,  where  Justices  Story  and  Davis  say,  that 
to  constitute  the  offence  of  piracy,  within  the  Act  of  30th  April, 
1790,  by  " piratically  and  feloniously"  running  away  with  a 
vessel,  "  the  act  must  have  been  done  with  the  wrongful  and 
fraudulent  intent  thereby  to  convert  the  same  to  the  taker's 
own  use,  and  to  make  the  same  his  own  property,  against  the 
will  of  the  owner.  The  intent  must  be  aniino  jurandi" 


76  TRIAL    OF   THE   OFFICERS    AND    CREW 

Now,  gentlemen,  1  think  that  when  you  come  to  consider 
this  case  in  your  jury -box,  whatever  other  difficulties  you  may 
have,  you  will  very  speedily  come  to  the  conclusion  that  the 
taking  of  the  Joseph  was  with  no  intent  of  stealing  on  the  part 
of  these  prisoners. 

But,  gentlemen,  there  is  another  requisite  to  the  crime  of 
robbery,  which,  I  contend,  and  shall  respectfully  attempt  to 
show  to  you,  is  absent  from  this  case.  I  mean,  it  must  be  by 
violence,  or  putting  him  in  fear  that  the  property  is  taken  from 
the  owner,  and  that  the  crime  of  robbery  is  committed.  I  beg 
to  refer  the  Court  to  the  definition  of  robbery  in  \st  Black- 
stone's  Commentaries,  p.  242,  and  \st  Hawkins"*  Pleas  of  the 
Crown,  p.  233,  where  robbery  at  common  law  is  denned  to  be 
"  open  and  violent  larceny,  the  rapina  of  the  civil  law,  the 
felonious  and  forcible  taking  from  the  person  of  another  of 
goods  or  money  to  any  value  by  violence,  or  putting  him  in 
tear." 

Now,  gentlemen,  1  say  there  was  nothing  of  that  kind  in 
this  case.  What  are  the  circumstances  as  testified  to  by  the 
witnesses  for  the  prosecution  ?  The  circumstances  are,  that  the 
Joseph  and  the  Savannah,  having  approached  within  hailing 
distance,  the  Captain  of  the  Savannah  hailed  the  Captain  of 
the  Joseph,  standing  on  the  deck  of  his  own  vessel,  and  re 
quested  him  to  come  on  board  and  bring  his  papers.  The 
answer  of  the  Captain  of  the  Joseph  was  an  inquiry  by  what 
authority  that  direction  was  given  ;  and  the  Captain  of  the 
Savannah  replied,  "  by  the  authority  of  the  Confederate  States." 
Whereupon  the  Captain  of  the  Joseph,  in  his  own  boat,  with 
two  of  his  crew,  went  alongside  the  Savannah,  was  helped 
over  the  side  by  the  Captain  of  the  Savannah,  and  was  informed 
by  him  that  he  was  under  the  disagreeable  necessity  of  taking 
his  vessel  and  taking  them  prisoners  ;  and  without  the  slightest 
force  or  violence  being  used  by  the  Captain,  or  by  a  single 
member  of  the  crew  of  the  Savannah — without  a  gun  being 
fired,  or  even  loaded,  so  far  as  anything  appears — the  Captain 
of  the  Joseph  voluntarily  submitted,  yielded  up  his  vessel,  and 
there  was  not  the  slightest  violence  or  putting  any  body  in  fear. 

Therefore,  gentlemen,  I  say,  that  so  far  as  the  crime  charged 
here  is  the  crime  of  robbery,  there  is  no  evidence  in  the  case 
under  which,  on  either  of  these  grounds,  by  reason  of  the  se 
crecy  of  the  act,  or  the  violence  or  putting  in  fear,  or  the  show 
ing  a  felonious  intent,  by  the  evidence  for  the  prosecution, 
these  prisoners  can  be  convicted  under  the  indictment  before 
you.  To  show  that  the  definition  of  robbery  at  common  law 
is  the  one  that  applies  to  these  statutes  of  the  United  States,  I 
beg  to  refer  your  honors  to  cases  in  the  Supreme  Court  of  the 
United  States.  I  refer  to  the  case  of  the  United  States  vs. 


OK    TUB    SCHOONER    SAVANNAH.  77 

Palmer,  3  Wheaton,  610  ;  the  United  States  vs.  Wood,  3d  Well 
ington,  440 ;  and  the  United  States  vs.  Wilson,  1  Baldwin^ 
p.  78. 

But,  gentlemen,  there  is  another  set  of  counts  in  this  indict 
ment  on  which,  probably,  as  to  those  who  are  citizens,  a  con 
viction  will  be  pressed  for  by  counsel  on  the  part  of  the  Gov 
ernment.  *  That  is  a  set  of  counts  to  which  I  am  about  to  call 
your  attention  in  reference  to  the  acts  under  which  they  were 
framed.  You  will  recollect  this,  gentlemen,  that  under  the 
counts  charging  the  oifence  of  robbery,  the  majority  of  these 
prisoners  must  be  convicted,  or  none  of  them  can  be  convicted 
at  all,  for  reasons  which  I  will  immediately  give  yon.  The 
only  statute  under  which  it  is  claimed  on  the  part  of  the  prose 
cution  that  a  conviction  can  be  had,  if  not  for  robbery  on  the 
high  seas,  imperatively  requires  that  the  prisoners  to  be  con 
victed  must  be  citizens  of  the  United  States.  There  are  twelve 
prisoners  here,  and  by  the  statement  of  the  last  witness  pro 
duced  on  the  part  of  the  prosecution,  only  four  of  them  appear 
to  be  citizens  of  the  United  States,  or  ever  to  have  been  citi 
zens  of  the  United  States.  The  others  were  all  born  in  different 
countries  in  Europe  and  Asia,  and  had  never  been  naturalized; 
and  the  Court,  whenever  this  case  comes  before  you,  so  far  as 
that  point  is  concerned,  will  give  you  the  evidence  on  the  sub 
ject,  by  which  you  will  see  exactly  which  of  these  prisoners 
had  ever  been  citizens  of  the  United  States,  and  which  of  them 
had  not  been.  I  therefore  proceed  to  examine  as  to  what  the 
statute  is,  and  what  the  requisites  are  for  a  conviction  of  those 
who  were  citizens  of  the  United  States  at  any  time.  I  will 
read  to  you  the  section  of  the  statute  to  which  1  have  reference. 
It  is  the  9th  section  of  the  Act  of  1790.  It  reads,  "  That  if  any 
citizen  shall  commit  any  piracy  or  robbery  aforesaid,  or  any  act 
of  hostility  against  the  United  States,  or  any  citizen  thereof, 
upon  the  high  seas,  under  color  of  any  commission  from  any 
foreign  Prince  or  State,  or  on  pretence  of  authority  from  any 
person,  such  offender  shall,  notwithstanding  the  pretence  of 
any  such  authority,  be  deemed,  adjudged,  and  taken  to  be  a 
pirate,  felon,  and  robber,  and,  on  being  thereof  convicted,  shall 
suffer  death." 

Now,  it  will  be  interesting  and  necessary  to  understand  the 
circumstances  under  which  that  statute  was  passed,  and  the 
application  which  it  was  intended  to  have.  I  will  briefly  read 
to  you  the  explanation  of  that  subject,  which  your  honors  will 
find  in  Hawkins*  Pleas  of  the  Crown,  1st  Vol.,  p.  268.  Haw 
kins  says : 

"  It  being  also  doubted  by  many  eminent  civilians  whether,  during  the 
Revolution,  the  persons  who  had  captured  English  vessels  by  virtue  of  com 
missions  granted  by  James  2nd,  at  his  court  at  St.  Germain,  after  his  abdica- 


78  TRIAL    OF   THE    OFFICERS  AND    CREW 


tion  of  the  throne  of  England,  could  be  deemed  pirates,  the  grantor  still  hav 
ing,  as  it  was  contended,  the  right  of  war  in  him  ;  it  is  enacted  by  11  and  12 
Will.  III.,  chap.  7,  sec.  8,  *  That  if  any  of  his  Majesty's  natural  born  subjects 
or  denizens  of  this  Kingdom  shall  commit  any  piracy  or  robbery,  or  any  act 
of  hostility  against  others  of  his  Majesty's  subjects  upon  the  sea,  under  color 
of  any  commission  from  any  foreign  Prince  or  State,  or  pretence  of  authority 
from  any  person  whatsoever,  such  offender  or  offenders,  and  every  of  them, 
shall  be  deemed,  adjudged,  and  taken  to  be  pirates,  felons,  and  robbers;  and 
they  and  every  of  them,  being  duly  convicted  thereof  according  to  this  Act  or 
the  aforesaid  statute  of  King  Henry  the  Eighth,  shall  have  and  suffer  such 
pains  of  death,  loss  of  land  and  chattels,  as  pirates,  felons,  and  robbers  upon 
the  sea  ought  to  have  and  suffer.'  " 

Your  honors  will  find  that  further  referred  to  in  the  case  of 
the  United  States  vs.  Jones,  3d  Wash.  Cfa.  Court  Reps.  p.  219, 
in  these  terms  : 

"The  9th  sec.  of  this  law  (the  Act  of  1790)  is  in  fact  copied  from  the 
statute  of  the  llth  and  12th  Wm.  3d,  ch.  7,  the  history  of  which  statute  is 
explained  by  Hawkins.  It  was  aimed  at  Commissions  granted  to  Cruisers 
by  James  II.,  after  his  abdication,  which,  by  many,  were  considered  as  con 
ferring  a  legal  authority  to  cruise,  so  as  to  protect  those  acting  under  them 
against  a  charge  of  piracy.  Still,  we  admit  that  unless  some  other  reason 
can  be  assigned  for  the  introduction  of  a  similar  provision  in  our  law,  the 
argument  which  has  been  founded  on  it  would  deserve  serious  considera 
tion.  We  do  not  think  it  difficult  to  assign  a  very  satisfactory  reason  for 
the  adoption  of  this  section  without  viewing  it  in  the  light  of  a  legislative 
construction  of  the  8th  sec.,  or  of  the  general  law. 

"  If  a  citizen  of  the  United  States  should  commit  acts  of  depredation 
against  any  of  the  citizens  of  the  United  States,  it  might  at  least  have  been 
a  question  whether  he  could  be  guilty  of  piracy  if  he  acted  under  a  foreign 
commission  and  within  the  scope  of  his  authority.  He  might  say  that  he 
acted  under  a  commission  ;  and  not  having  transgressed  the  authority  derived 
under  it,  he  could  not  be  charged  criminally.  But  the  9th  sec.  declares  that 
this  shall  be  no  plea,  because  the  authority  under  which  he  acted  is  not 
allowed  to  be  legitimate-  It  declares  to  the  person  contemplated  by  this 
section,  that  in  cases  where  a  commission  from  his  own  Government  would 
protect  him  from  the  charge  of  piracy,  that  is,  where  he  acted  within  the 
scope  of  it  or  even  where  he  acted  fairly  but  under  a  mistake  in  transgress 
ing  it,  yet  that  a  foreign  commission  should  afford  him  no  protection,  even 
although  he  had  not  exceeded  the  authority  which  it  professed  to  give  him. 
But  it  by  no  means  follows  from  this  that  a  citizen  committing  depredations 
upon  foreigners  or  citizens,  not  authorized  by  the  commission  granted  by 
his  own  Government,  and  with  a  felonious  intention,  should  be  protected  by 
that  commission  against  a  charge  of  piracy.  Another  object  of  this  section 
appears  to  have  been  to  declare  that  acts  of  hostility  committed  by  a  citizen 
against  the  United  States  upon  the  high  seas,  under  pretence  of  a  commission 
issued  ~by  a  foreign  Government,  though  they  might  amount  to  treason,  were 
nevertheless  piracy  and  to  be  tried  as  such.'1'1 

Your  honors  will  find  another  very  interesting  history  in 
reference  to  this  statute  in  Phillimore's  International  Law, 
1st  vol.,  sec.  398.  Phillimore  says  : 

<;Soon  after  the  abdication  of  James  II.,  an  international  question  of  very 
great  importance  arose,  namely,  what  character  should  be  ascribed  to  priva 
teers  commissioned  by  the  monarch,  who  had  abdicated,  to  make  war  against 


OF    THE    SCHOONER    SAVANNAH.  79 

the  adherents  of  William  III.,  or  rather  against  the  English,  while  under  his 
rule.  The  question,  in  fact,  involved  a  discussion  of  the  general  principle, 
whether  a  deposed  sovereign,  claiming  to  be  sovereign  de  jure,  might  law 
fully  commission  privateers  against  the  subjects  and  adherents  of  the  sover 
eign  de  facto  on  the  throne;  or  whether  such  privateers  were  not  to  be  con 
sidered  as  pirates,  inasmuch  as  they  were  sailing  ammo  furandi  et  deprae- 
dandi,  without  any  national  character.  The  question,  it  should  be  observed, 
did  not  arise  in  its  full  breadth  and  importance  until  James  1L  had  been 
expelled  from  Ireland  as  well  as  England,  until,  in  fact,  he  was  a  sovereign, 
claiming  to  be  such  de  jure,  BUT  CONFESSEDLY  WITHOUT  TERRITORY.  It  appears 
that  James,  after  he  was  in  this  condition,  continued  to  issue  letters  of 
marque  to  his  followers.  The  Privy  Council  of  William  III.  desired  to  hear 
civilians  upon  the  point  of  the  piratical  character  of  such  privateers.  The 
arguments  on  both  sides  are  contained  in  a  curious  and  rather  rare  pamphlet, 
published  by  one  of  the  counsel  (Dr.  Tindal)  for  King  William,  in  the  years 
1693-4.  The  principal  arguments  for  the  piratical  character  of  the  priva 
teers  appear  to  have  been — 

"  That  they  who  acted  under  such  commission  may  be  dealt  with  as  if 
they  had  acted  under  their  own  authority  or  the  authority  of  any  private 
person,  and  therefore  might  be  treated  as  pirates.  That  if  such  a  titular 
Prince  might  grant  commissions  to  seize  the  ships  and  goods  of  all  or  most 
trading  nations,  he  might  derive  a  considerable  revenue  as  a  chief  of  such 
freebooters,  and  that  it  would  be  madness  in  nations  not  to  use  the  utmost 
rigor  of  the  law  against  such  vessels. 

"  That  the  reason  of  the  thing  which  pronounced  that  robbers  and  pirates, 
when  they  formed  themselves  into  a  civil  society,  became  just  enemies,  pro 
nounced  also  that  A  KING  WITHOUT  TERRITORY,  without  power  of  protecting 
the  innocent  or  punishing  the  guilty,  or  in  any  way  of  administering  justice, 
dwindled  into  a  pirate  if  he  issued  commissions  to  seize  the  goods  and  ships 
of  nations  ;  and  that  they  who  took  commissions  from  him  must  be  held  by 
legal  inference  to  have  associated  sceleris  causa,  and  could  not  be  considered 
as  members  of  a  civil  society." 

I  will  not  occupy  the  time  of  the  Court  and  Jury  by  recapitu 
lating  the  rest  of  the  arguments  which  were  urged  with  very 
great  ability  by  the  learned  and  distinguished  civilians  arrayed 
against  each  other  in  that  interesting  debate.  But  the  points 
which  arise,  and  which  the  Court  will  have,  in  due  time,  to  in 
struct  you  upon,  we  respectfully  claim  and  insist  are  these : 
That  tins  English  statute,  after  which  our  own  statute  was  pre 
cisely  copied,  was  intended  only  to  apply  to  the  case  of  pirates 
cruising  under  a  commission  pretended  to  have  been  given, 
in  the  first  place,  by  a  Prince  deposed,  abdicated,  not  having  a 
foot  of  territory  yielding  him  obedience  in  any  corner  of  the 
world  ;  and,  in  the  next  place,  that  it  was  intended  to  be  aimed 
against  those  cruising  under  a  commission  i  sued  under  the 
pretence  of  authority  from  a  foreigner,  and  not  from  the  authori 
ties  over  them  de  jure  or  de  facto,  or  from  any  authorities  of 
the  land  in  which  they  lived,  and  where  the  real  object  was 
depredation ;  because,  where  it  was  issued  by  a  monarch  with 
out  territory — by  a  foreigner,  having  no  rule,  and  no  country 
in  subjection  to  liim — there  could  be  no  prize-court,  and  none  of 
the  ordinary  machinery  for  disposing  of  prizes  captured,  accord- 


80  TKIAL   OF    THE    OFFICERS    AND    CREW 

ing  to  the  rules  of  international  law ;  and,  lastly,  it  was  intended 
to  apply  to  the  case  of  a  citizen,  taking  a  privateer's  commission 
from  a  foreign  Government  as  a  pretence  to  enable  him  to 
cruise  against  the  commerce  of  his  own  countrymen.  But  it 
was  never  intended  to  apply  to  a  case  of  this  kind,  where  tlie 
commission  was  issued  by  the  authorities  of  the  land  in  which 
the  parties  receiving  it  live,  exercising  sway  and  dominion  over 
them,  whether  de  jure  or  de  facto. 

Now,  gentlemen,  so  far  I  have  thought  it  necessary  to  go  in 
explanation  of  what  the  statutes  were,  of  the  circumstances 
bearing  on  them,  and  of  the  requisites  which  the  prosecution 
had  to  make  out,  in  order  to  ask  a  conviction  at  your  hands.  I 
come  now,  for  the  purpose  of  this  opening,  to  lay  before  you 
what  we  shall  rely  upon  in  our  defence.  The  first  defence,  as 
has  already  appeared  to  you  from  the  course  of  the  examina 
tion  of  the  prosecution's  witnesses,  has  reference  to  the  question 
of  the  jurisdiction  of  this  Court  to  hear  and  determine  this  con 
troversy.  The' statute  has  been  already  read  to  you,  on  which 
that  question  of  jurisdiction  rests;  but,  for  fear  that  you  do  not 
recollect  it,  I  will  beg  once  more  to  call  your  attention  to  it. 
The  concluding  paragraph  of  sec.  14:  of  the  Act  of  1825,  4th 
vol.  of  the  Statutes  at  Large,  p.  118,  is  as  follows : 

"And  the  trial  of  all  offences  which  shall  be  committed  on  the  high  seas 
or  elsewhere  out  of  the  limits  of  any  State  or  District,  shall  be  in  the  District 
where  the  offender  is  apprehended,  or  into  which  he  may  first  be  brought." 

Now,  you  observe  that  the  language  of  the  statute  is  im 
perative — the  reasons  which  led  to  its  adoption  were  also  im 
perative  and  controlling.  It  is  necessary  that  the  law  shall 
make  provision  for  the  place  where  a  man  shall  be  put  on  trial 
under  an  indictment  against  him;  and  the  law  wisely  provides 
that  in  cases  of  offences  committed  on  the  laud,  the  trial  shall 
only  take  place  where  the  offence  was  committed.  It  was 
thought  even  necessary  to  provide  for  that  by  an  amendment 
to  the  Constitution  of  the  United  States,  in  order  that  there 
might  be  no  misunderstanding  of,  and  no  departure  from,  the 
rule. 

The  Constitution,  by  one  of  its  amendments,  in  the  same 
paragraph  which  provides  for  the  right  of  every  accused  to  a 
speedy  and  impartial  trial,  provides  also  that  that  trial  shall 
take  place  in  the  District,  which  District  shall  first  have  been 
ascertained  by  law  ;  and  as  I  said  to  you,  in  cases  of  crimes  com 
mitted  on  the  land,  that  District  must  be  the  District  where 
the  offence  was  committed,  and  no  other. 

Now  look  at  the  state  of  things  here,  gentlemen.  These 
men  are  all  citizens  or  residents  of  the  State  of  South  Carolina, 
and  have  been  so  for  years.  This  vessel  was  fitted  out  in  South 
Carolina.  The  authority  under  which  she  professed  to  act  was 


OF    THE    SCHOONER    SAVANNAH.  81 

given  there.  The  evidence  for  the  defence,  if  it  could  be  got, 
inu-Jt  come  from  there.  All  the  circumstances  bearing  on  the 
transaction  occurred  in  that  section  of  the  country,  and  not 
elsewhere, — occurred  in  a  country  which  is  now  under  the 
same  Government  and  domination  as  Virginia,  because  Virginia 
is  included  at  present  under  the  domination  and  Government  of 
the  Confederate  States. 

Well,  with  reference  to  offences  committed  at  sea,  the  offi 
cers  capturing  a  prize  have  a  right  to  bring  it  into  any  port,  it 
is  true,  and  the  port  where  the  prisoners  are  brought  is,  as  we 
claim  under  the  construction  of  the  statute,  the  port  where  the 
trial  is  to  take  place  ;  the  port  where  the  prisoners  are  first 
brought,  whether  they  are  landed  or  not.  On  that  question  of 
jurisdiction  the  rule  is  this :  The  jurisdiction  of  the  State  ex 
tends  to  the  distance  of  a  marine  league  from  shore  ;  and  if 
these  prisoners  were  brought  on  this  vessel  within  the  distance 
of  three  miles  from  the  shores  of  Virginia,  where  the  vessel 
anchored,  as  in  port,  having  communication  with  the  land,  the 
jurisdiction  of  the  Circuit  Court  of  the  Eastern  District  of  Vir 
ginia  attached,  and  they  could  not,  after  that,  be  put  on  trial 
for  that  offence  elsewhere.  It  is  not  necessary  for  me  now  to 
trouble  the  Jury  with  re-reading  authorities  which  were  read 
upon  this  subject  yesterday.  In  a  case  which  occurred  some 
years  ago,  before  Judge  Story,  the  learned  Judge  had  fallen 
into  a  misapprehension  on  a  question  which  did  not  necessarily 
arise,  because  the  facts  to  give  rise  to  it  did  not  occur  in  the 
case.  An  offence  had  been  committed — an  attempt  to  create 
a  revolt  on  board  of  a  vessel  at  sea.  Those  who  had  made  the 
attempt  had  either  repented  of  the  design,  or  had  not  succeed 
ed  in  it ;  at  all  events,  they  had  afterwards  gone  on  to  do  their 
duty  on  the  vessel,  and  had  not  been  incarcerated  on  board  the 
vessel  at  all.  The  vessel  first  got  into  a  port  in  Connecticut, 
and  finally  got  into  a  port  in  Massachusetts,  and  there,  for  the 
first  time,  those  prisoners  were  arrested  and  put  into  confine 
ment.  Undoubtedly  the  Court  in  Massachusetts  had  jurisdic 
tion  in  that  case ;  but  Judge  Story, speaking  on  a  question  which 
did  not  arise,  appeared  to  treat  the  language  of  the  statute  as 
being  alternative,  giving  the  Government  the  right  to  select 
one  of  two  places  for  the  trial.  That  was  corrected  in  a  late 
case  which  came  before  the  Court  in  Massachusetts,  in  the 
same  District  where  Judge  Story  had  decided  the  previous  case. 
Both  Judge  Sprague,  of  the  District  Court,  and  Judge  Clifford, 
of  the  Circuit  Court,  held  that  in  a  case  where  prisoners  had 
been  captured  as  malefactors  on  the  high  seas,  and  had  been 
confined  on  board  a  United  States  vessel,  where  the  vessel  had 
gone  into  Key  West  for  a  temporary  purpose,  to  get  water, 
without  the  prisoners  ever  having  been  landed,  and  where  they 


82  TRIAL    OF   THE   OFFICERS    AND   CREW 

went  from  thence  to  Massachusetts,  where  the  prisoners  were 
arrested  by  the  civil  authorities  and  imprisoned,  that  the  Court 
of  Massachusetts  had  no  jurisdiction  whatever.  Under  the 
instructions  of  the  Court,  the  Grand  Jury  refused  to  find  an 
indictment,  and  a  warrant  of  removal  was  granted  to  remove 
the  prisoners  for  trial  in  the  Court  at  Key  West, — the  Court 
of  Massachusetts  holding  that  that  was  the  only  place  where 
they  could  be  tried  for  the  offence,  because  the  vessel  having 
them  in  custody  as  prisoners  had  touched  there  to  get  water 
on  her  voyage.  We  have  not  even  the  information  in  that 
case  as  to  whether  the  vessel  went  within  three  miles  of  the 
shore;  it  was  enough  that  she  had  communicated  with  Key 
West,  and  that  the  prisoners  might  have  been  landed  there ; 
but  it  was  held  that  the  Government  had  not  a  right  to  elect 
the  place  of  trial  of  the  prisoners;  and  it  is  important,  particu 
larly  in  cases  of  this  kind,  that  no  one  shall  have  the  right  to 
elect  a  place  of  trial.  I  say  that,  not  with  the  slightest  inten 
tion  of  imputing  any  unfair  motives  to  the  Government,  to  the 
officers  of  the  Navy,  or  any  one  else.  It  is  a  great  deal  better 
that  where  men  are  to  be  put  on  trial  for  their  lives,  they  should 
have  the  benefit  of  the  chapter  of  accidents. 

If  it  would  have  been  any  better  for  these  prisoners  to  have 
had  a  Jury  to  try  them  in  Virginia,  they  were  entitled  to  the 
benefit  of  that.  In  saying  so,  I  mean  no  reflection  on  any  Jury 
in  New  York.  I  have  no  doubt  you  will  try  this  case  as  hon 
estly,  as  fairly,  and  as  impartially  as  any  Jury  in  Virginia  could 
try  it.  But  at  the  same  time  we  all  know  that  if  this  right  of 
election  can  be  resorted  to  on  the  part  of  the  United  States, 
men  might  suffer,  not  from  any  wrong  intention,  but  from  the 
natural  and  inevitable  and  often  unconscious  tendency  of  those 
who  are  to  prosecute,  to  select  the  place  of  prosecution  most 
convenient  for  themselves. 

We  shall  therefore  claim  before  you,  gentlemen,  following 
the  rule  laid  down  in  Massachusetts  by  Judge  Clifford  and 
Judge  Sprague,  that  this  vessel,  having  been  within  a  marine 
league  of  the  shore  of  Virginia,  was  within  the  jurisdiction  of 
the  District  Court  of  Virginia,  and  that  that  was  the  only  place 
where  they  could  be  tried.  Suppose,  as  was  well  suggested  to 
me  by  one  of  my  associates,  that  on  the  Minnesota,  lung  where 
she  did,  or  on  the  Harriet  Lane,  tying  where  she  did  in  Hamp 
ton  Roads,  a  murder  had  been  committed:  could  it  be  contended 
by  any  one  that  the  United  States  Court  in  Virginia  would  not 
have  had  jurisdiction,  and  the  only  jurisdiction  over  the  case? 

Now,  gentlemen,  that  is  all  which,  on  the  opening  of  this 
case,  I  am  going  to  say  on  the  subject  of  jurisdiction. 

Our  next  defence  will  be,  that  the  commission  in  this  case 
affords  adequate  protection  to  these  prisoners ;  and  we  will  put 


OF   THE    SCHOONER    SAVANNAH.  83 

that  before  you  in  several  points  of  view.  It  will  undoubtedly 
be  read  to  you  in  evidence.  It  was  one  of  the  documents  found 
on  board  this  vessel. 

Mr.  Evarts :  It  is  not  in  evidence  ;  and  how  can  counsel 
open  to  the  Jury  upon  a  commission  which  is  not  in  evidence? 

Judge  Nelson :  Counsel  can  refer  to  it  as  part  of  his  open 
ing. 

Mr.  Larocque:  Now,  gentlemen,  you  will  recollect  that 
the  counsel  for  the  prosecution,  in  framing  this  indictment,  has 
treated  this  in  the  w^ay  in  which  we  claim  he  was  bound  to 
treat  it;  that  is  to  say,  that  the  9th  section  of  the  Act  of  1790 
was  intended  to  refer  exclusively  to  offences  claimed  to  have 
been  committed  under  a  commission  ;  throwing  on  the  prose 
cution  the  necessity  of  setting  forth  the  commission  or  the  pre 
tence  of  authority.  Having  set  it  forth,  the  prosecution  is 
bound  by  the  manner  in  which  it  is  described  in  the  indict 
ment;  and  if  it  is  described  as  something  which  it  is  not,  the 
prisoners  must  have  the  benefit  of  that  mis-description. 

Now,  in  framing  this  indictment,  the  counsel  for  the  prose 
cution  has  set  forth  that  the  prisoners  claimed  to  act  under  a 
commission  issued  by  one  Jefterson  Davis.  That  is  to  say,  he 
has  attempted  to  ground  his  claim  to  a  conviction  on  that  sec 
tion  of  the  statute.  You  will  recollect  that  the  statute  reads, 
"  under  pretence  of  any  commission  granted  by  any  foreign 
Prince  or  State"  (which  the  Courts  of  the  United  States  have 
held,  to  mean  a  foreign  State),  "or  under  pretence  of  authority 
from  any  person."  And  it  was  necessary,  in  order  to  ground 
an  indictment  on  that  section  of  the  statute,  to  bring  this  case 
within  the  exact  letter  or  words  of  one  or  the  other  clause  of 
that  section  of  this  statute.  It  would  not  do  for  them  to  claim 
that  this  commission  was  issued  by  a  foreign  Prince  or  foreign 
State,  because,  if  by  a  foreign  Prince  or  foreign  State,  there 
would  be  no  doubt  or  question  that  all  of  these  parties  were 
citizens  of  that  foreign  State  or  residents  .there,  and  were  not 
citizens  of  the  United  States.  Of  course,  if  this  were  a  foreign 
State,  they  were  foreign  citizens,  and  not  citizens  of  the  United 
States. 

What  is  this  commission?  As  we  shall  lay  it  before  you, 
it  reads  in  this  way  : 

"  JEFFERSON  DAVIS, 

"  President  of  the  Confederate  States  of  America, 
"  To  all  who  shall  see  these  Presents,  Greeting  : 

"  Know  ye,  That  by  virtue  of  the  power  vested  in  me  by  law,  I  have 
commissioned,  and  do  hereby  commission,  have  authorized,  and  do  hereby 
authorize,  the  schooner  or  vessel  called  the  'Savannah'  (more  particularly 
described  in  the  schedule  hereunto  annexed),  whereof  T.  Harrison  Baker  is 
commander,  to  act  as  a  private  armed  vessel  in  the  service  of  the  Confederate 
States,  on  the  high  seas,  against  the  United  States  of  America,  their  '  ships, 


84  TRIAL    OF   THE   OFFICERS    AND    CREW 

vessels,  goods,  and  effects,  and  those  of  their  citizens,  during  the  pendency 
of  the  war  novr  existing  between  the  said  Confederate  States  and  the  said 
United  States. 

"  This  commission  to  continue  in  force  until  revoked  by  the  President  of 
the  Confederate  States  for  the  time  being 

"  Given  under  my  hand  and  the  seal  of  the  Confederate  States, 
[i*.  s.]  at  Montgomery,  this  eighteenth  day  of  May,  A.  D.  1861. 

"(Signed)        JEFFERSON  DAVIS. 
"By  the  President. 

UR.  TOOMBS, 

"Secretary  of  State. 

"SCHEDULE  OF  DESCMHITION  OF  THE  VESSEL. 

u  Name — Schooner  '  Savannah.' 

"Tonnage — Fifty-three  f|th  tons. 

"  Armament — One  large  pivot  gun  and  small  arms. 

44  No.  of  Crew— Thirty." 

That  is  the  document,  bearing  the  seal  of  ten  Slates,  signed 
by  Jefferson  Davis  as  President — signed  by  the  Secretary  of 
State  for  those  ten  State?,  which  the   learned   counsel  wbo 
framed  the  indictment  has  undertaken  to  call  "  a  pretence  of 
authority  from  one  Jefferson  Davis."     The  ccunsel  was  forced 
to  frame  his  indictment  in  that  way  ;  for  if  he  had  alleged  in 
the  indictment  that  it  was  by  pretence  of  authority  from  the 
Confederate   States — to   wit,    South   Carolina,   Georgia,   &c., 
naming  States   which   this  Government,  for  the  purpose  of 
bringing  this  prosecution  at  all,  must  claim  to  be  in  the  Union 
—it  would  be  clearly  outside  of  the  provision  of  the  statute, 
and  could  never  get  before  a  Jury,  because  it  would  Lave  been 
dismissed  on  application   to   the   Court  beforehand.     But  the 
learned  counsel  has  sought,  by  stating  an  argumentative  con 
clusion  of  law  in  his  indictment,  according  to  his  understanding 
of  it,  to  bring  within  the  statute  a  case  which  the  statute  was 
not  meant  to  meet — an  entirely  different  and  distinct  case.     I 
submit  to  you,  that  that  cannot  be  done, — that  the  commission 
on  its  face  does  not  purport  to  be  a  commission  granted  by  any 
person.    It  purports  to  be,  and,  if  anything,  it  is,  a  commission 
granted  by  authority  of  the  States  that  are  joined   together 
under  the  name  of  Confederate  States ;  and,  gentlemen,  as  I 
said,  we  shall  claim  before  you  that  this  commission  is  a  pro 
tection  to  these  parties,   against  the   charge   of  piracy,   upon 
various  distinct  grounds. 

In  the  first  place,  we  shall  claim  before  you  that  the  Gov 
ernment,  called  the  Government  of  the  Oonfedi  rate  States 
(whether  you  call  it  a  Government  d^jnre  or  a  Government  de 
facto,  or  whatever  name  under  the  nomenclature  of  nations 
you  choose  to  give  it),  is  the  present  existing  Government  of 
those  States,  exercising  dominion  over  them,  without  any  other 


OF    THE    SCHOONER   SAVANNAH.  85 

Government  having  an  officer  or  court,  or  any  insignia  of  ( 
eminent  within  them. 

This  is  a  point  which,  at  a  future  stage  of  the  case,  my 
learned  associate,  who  is  much  better  able  to  do  so  than  I  am, 
will  have  occasion  to  dwell  upon.  I  wish,  however,  to  call 
your  attention  to  the  rules  as  they  have  been  laid  down ;  and 
first,  I  would  desire  to  refer  you,  and  also  to  call  the  attention 
of  the  Court,  to  what  is  said  by  Yattel, — who,  as  you  all  prob 
ably  know,  is  one  of  the  most  celebrated  authors  upon  inter 
national  rights,  and  international  law,  and  who  is  received  as 
authority  upon  that  subject  in  every  Court  in  Europe  and 
America.  1  refer  to  Vattel,  book  1,  chap.  17,  sees.  201  and 
202,  where  he  says  : 

"  Sec.  201.  When  a  city  or  province  is  threatened,  or  actually  attacked,  it 
must  not,  for  the  sake  of  escaping  a  danger,  separate  itself,  or  abandon  its  natu 
ral  Prince,  even  when  the  State  or  the  Prince  is  unable  to  give  it  immediate  and 
effectual  assistance.  Its  duty,  its  political  engagements,  oblige  it  to  make 
the  greatest  efforts  in  order  to  maintain  itself  in  its  present  state.  If  it  is 
overcome  by  force,  necessity,  that  irresistible  law,  frees  it  from  its  former  en 
gagements,  and  gives  it  a  right  to  treat  with  the  conqueror,  in  order  to  obtain 
the  best  terms  possible.  If  it  must  either  submit  to  him  or  perish,  who  can 
doubt  but  it  may,  and  even  ought  to  prefer  the  former  alternative  ?  Modern 
usage  is  conformable  to  this  decision, — a  city  submits  to  the  enemy,  when  it 
cannot  expect  safety  from  vigorous  resistance.  It  takes  an  oath  of  fidelity 
to  him,  and  its  sovereign  lays  the  blame  on  fortune  alone." 

"  Sec.  202.  The  State  is  obliged  to  protect  and  defend  all  its  members ;  and 
the  Prince  owes  the  same  assistance  to  his  subjects.  If,  therefore,  the  State 
or  the  Prince  refuses  or  neglects  to  succor  a  body  of  people  who  are  exposed 
to  imminent  danger,  the  latter,  being  thus  abandoned,  become  perfectly  free 
to  provide  for  their  own  safety  and  preservation  in  whatever  manner  they  find 
most  convenient,  without  paying  the  least  regard  to  those  who,  by  abandon 
ing  them,  have  been  the  first  to  fail  in  their  duty.  The  Canton  of  Zug,  being 
attacked  by  the  Swiss  in  1352,  sent  for  succor  to  the  Duke  of  Austria,  its 
sovereign ;  but  that  Prince,  being  engaged  in  discourse  concerning  his  hawks 
at  the  time  when  the  deputies  appeared  before  him,  would  scarcely  conde 
scend  to  hear  them.  Thus  abandoned,  the  people  of  Zug  entered  into  the 
Helvetic  Confederacy.  The  city  of  Zurich  had  been  in  the  same  situation 
the  year  before.  Being  attacked  by  a  band  of  rebellious  citizens,  who  were 
supported  by  the  neighboring  nobility,  and  the  House  of  Austria,  it  made 
application  to  the  head  of  the  Empire ;  but  Charles  IV.,  who  was  then  Em 
peror,  declared  to  its  deputies  that  he  could  not  defend  it,  upon  which  Zurich 
secured  its  safety  by  an  alliance  with  the  Swiss.  The  same  reason  has  au 
thorized  the  Swiss  in  general  to  separate  themselves  entirely  from  the  Empire 
which  never  protected  them  in  any  emergency.  They  had  not  denied  its 
authority  for  a  long  time  before  their  independence  was  acknowledged  by  the 
Emperor,  and  the  whole  Germanic  Body,  at  the  treaty  of  Westphalia." 

I  also  refer  to  the  case  of  the  United  States  v.  Hay  ward,  2 
Gallison,  485,  which  was  a  writ  of  error  to  the  District  Court 
of  Massachusetts,  in  a  case  of  alleged  breach  of  the  revenue 
laws.  It  appears  that  Castine  (in  Maine)  was  taken  possession 


36 


TRIAL   OF   THE   OFFICERS    AND   CREW 


of  by  the^  British  troops  on  the  1st  of  September,  181 4,  and 
was  held  in  their  possession  until  after  the  Treaty  of  Peace. 
Judge  Story  says : 

44  The  second  objection  is,  that  the  Court  directed  the  Jury  that  Castine 
was,  under  the  circumstance,  a  foreign  port.  By  'foreign  port,'  as  the  terms 
are  here  used,  may  be  understood  a  port  within  the  dominions  of  a  foreign 
sovereign,  and  without  the  dominions  of  the  United  States.  The  port  of 
Castine  is  the  port  of  entry  for  the  District  of  Penobscot,  and  is  within  the 
acknowledged  territory  of  the  United  States.  But,  at  the  time  referred  to  in 
the  bill  of  exceptions,  it  had  been  captured,  and  wras  in  the  open  and  exclusive 
possession  of  the  enemy.  By  the  conquest  and  occupation  of  Castine,  that 
territory  passed  under  the  allegiance  and  sovereignty  of  the  enemy.  The 
sovereignty  of  the  United  States  over  the  territory  was,  of  course,  suspended, 
and  the  laws  of  the  United  States  could  no  longer  ~be  rightfully  enforced,  or 
be  obligatory  upon  the  inhabitants,  who  remained  and  submitted  to  the  con- 
querors" 

Now,  gentlemen,  I  must  trouble  you,  very  briefly,  with  a 
reference  to  one  or  two  other  authorities  on  that  subject.  At 
page  188  of  Foster's  Crown  Law  that  learned  author  says: 

"  Sec  8.  Protection  and  allegiance  are  reciprocal  obligations,  and  conse 
quently  the  allegiance  due  to  the  Crown  must,  as  I  said  before,  be  paid  to 
him  who  is  in  the  full  and  actual  exercise  of  the  regal  powers,  and  to  none 
other.  I  have  no  occasion  to  meddle  with  the  distinction  between  Kings  de 
facto  and  Kings  de  jure,  because  the  warmest  advocates  for  that  distinction, 
and  for  the  principles  upon  which  it  hath  been  founded,  admit  that  even  a 
£ing  de  facto,  in  the  full  and  sole  possession  of  the  Crown,  is  a  King  within 
the  Statute  of  Treasons;  it  is  admitted,  too,  that  the  throne  being  full,  any 
other  person  out  of  possession,  but  claiming  title,  is  no  King  within  the  act, 
be  his  pretensions  what  they  may. 

"  These  principles,  I  think,  no  lawyer  hath  ever  yet  denied.  They  are 
founded  in  reason,  equity,  and  good  policy." 

And  again,  at  page  398,  he  continues  : 

"  His  Lordship  [Hale]  admitted  that  a  temporary  allegiance  was  due  to 
Henry  VI.  as  being  King  de  facto.  If  this  be  true,  as  it  undoubtedly  is,  with 
what  color  of  law  could  those  who  paid  him  that  allegiance  before  the  acces 
sion  of  Edward  IV.  be  considered  as  traitors  ?  For  call  it  a  temporary  alle 
giance,  or  by  what  other  epithet  of  diminution  you  please,  still  it  was  due  to 
him,  while  in  full  possession  of  the  Crown,  and  consequently  those  who  paid 
him  that  due  allegiance  could  not,  with  any  sort  of  propriety,  be  considered 
as  traitors  for  doing  so. 

"The  llth  of  Henry  VII.,  though  subsequent  to  these  transactions,  is 
full  in  point.  For  let  it  be  remembered,  that  though  the  enacting  part  of 
this  excellent  law  can  respect  only  future  cases,  the  preamble,  which  his 
Lordship  doth  not  cite  at  large,  is  declaratory  of  the  common  law  :  and  con 
sequently  will  enable  us  to  judge  of  the  legality  of  past  transactions.  It 
reciteth  to  this  effect,  '  That  the  subjects  of  England  are  bound  by  the  duty 
of  their  allegiance  to  serve  their  Prince  and  Sovereign  Lord  for  the  time  being, 
in  defence  of  him  and  his  realm,  against  every  rebellion,  power,  and  might 
raised  against  him  ;  and  that  whatsoever  may  happen  in  the  fortune  of  war 
against  the  mind  and  will  of  the  Prince,  as  in  this  land,  some  time  past  it 
hath  been  seen,  it  is  not  reasonable,  but  against  all  laws,  reason,  and  good 


OF   THE    SCHOONER    SAVANNAH.  87 

conscience,  that  such  subjects  attending  upon  such  service  should  suffer  for 
doing  their  true  duty  and  service  of  allegiance.'  It  then  enacteth,  that  no 
person  attending  upon  the  King  for  the  time  being  in  his  wars,  shall  for  such 
service  be  convict  or  attaint  of  treason  or  other  offence  by  Act  of  Parliament, 
or  otherwise  by  any  process  of  law." 

The  author  says  then  : 

"  Here  is  a  clear  and  full  parliamentary  declaration,  that  by  the  antient 
law  and  Constitution  of  England,  founded  on  principles  of  reason,  equity,  and 
good  conscience,  the  allegiance  of  the  subject  is  due  to  the  King  for  the  time 
being,  and  to  him  alone.  This  putteth  the  duty  of  the  subject  upon  a  ra 
tional,  safe  bottom.  He  knoweth  that  protection  and  allegiance  are  recip 
rocal  duties.  He  hopeth  for  protection  from  the  Crown,  and  he  payeth  his 
allegiance  to  it  in  the  person  of  him  whom  he  seeth  in  full  and  peaceable 
possession  of  it.  He  entereth  not  into  the  question  of  title  ;  he  hath  neither 
leisure  or  abilities,  nor  is  he  at  liberty  to  enter  into  that  question.  But  he 
seeth  the  fountain,  from  whence  the  blessings  of  Government,  liberty,  peace, 
and  plenty  flow  to  him  ;  and  there  he  payeth  his  allegiance.  And  this  excel 
lent  law  hath  secured  him  against  all  after  reckonings  on  that  account." 

And  another  author  on  that  subject  [Hawkins],  in  his 
Pleas  of  the  Crown,  Book  L,  chap.  17,  sec.  11,  says  : 

"As  to  the  third  point,  who  is  a  King  within  this  act?  [26  Edw.  3,  ch.  2.] 
It  seems  agreed  that  every  King  for  the  time  being,  in  actual  possession  of 
the  crown,  is  a  King  within  the  meaning  of  this  statute.  For  there  is  a  ne 
cessity  that  the  realm  should  have  a  King  by  whom  and  in  whose  name  the 
laws  shall  be  administered ;  and  the  King  in  possession  being  the  only  per 
son  who  either  doth  or  can  administer  those  laws,  must  be  the  only  person 
who  has  a  right  to  that  obedience  which  is  due  to  him  who  administers 
those  laws ;  and  since  by  virtue  thereof  he  secures  to  us  the  safety  of  our 
lives,  liberties,  and  properties,  and  all  other  advantages  of  Government,  he 
may  justly  claim  returns  of  duty,  allegiance,  and  subjection." 

"Sec.  12.  And  this  plainly  appears  by  the  prevailing  opinions  in  the 
reign  of  King  Edward  IV.,  in  whose  reign  the  distinction  between  a  King 
dejure&nd  de  facto  seems  first  to  have  begun  ;  and  yet  it  was  then  laid  down 
as  a  principle,  and  taken  for  granted  in  the  arguments  of  Bagot's  case,  that  a 
treason  against  Henry  VI.  while  he  was  King,  in  compassing  his  death,  was 
punishable  after  Edward  IV.  came  to  the  Crown  ;  from  which  it  follows  that 
allegiance  was  held  to  be  due  to  Henry  VI.  while  he  was  King,  because  every 
indictment  of  treason  must  lay  the  offence  contra  ligeantm  debitum. 

"Sec.  13.  It  was  also  settled  that  all  judicial  acts  done  by  Henry  VI. 
while  he  was  King,  and  also  all  pardons  of  felony  and  charters  of  denization 
granted  by  him,  were  valid ;  but  that  a  pardon  made  by  Edward  IV.,  before 
he  was  actually  King,  was  void,  even  after  he  came  to  the  Crown." 

"And  by  the  llth  Henry  VII.,  ch.  1,  it  is  declared  'that  all  subjects  are 
bound  by  their  allegiance  to  serve  their  Prince  and  Sovereign  Lord  for  the 
time  being  in  his  wars  for  the  defence  of  him  and  his  land  against  every 
rebellion,  power,  and  might  reared  against  him,  &c.,  and  that  it  is  against 
all  laws,  reason,  and  good  conscience  that  he  should  lose  or  forfeit  any  thing 
for  so  doing  ;'  and  it  is  enacted  '  that  from  thenceforth  no  person  or  persons 
that  attend  on  the  King  for  the  time  being,  and  do  him  true  and  faithful 
allegiance  in  his  wars,  within  the  realm  or  without,  shall  for  the  said  deed 
and  true  duty  of  allegiance  be  convict  of  any  offence.''  " 

41  Sec.  15.  From  hence  it  clearly  follows:  Fir*t,  that  every  King  for  the 


88  TEIAL    OF    THE    OFFICERS    AND   CREW 

time  being  has  a  right  to  the  people's  allegiance,  because  they  are  bound 
thereby  to  defend  him  in  his  wars,  against  every  power  whatsoever. 

11  Sec.  16.  Secondly,  that  one  out  of  possession  is  so  far  from  having  any 
right  to  allegiance,  by  virtue  of  any  other  title  which  he  may  set  up  against 
the  King  in  being,  that  we  are  bound  by  the  duty  of  our  allegiance  to  resist 
him." 

And  these  doctrines,  if  the  Court  please,  have  been  re 
cently  acted  upon  and  enforced  by  a  learned  Judge  in  the  case 
of  the  United  States  vs.  The  General  Parkhill,  tried  in  Phila 
delphia,  and  published  in  the  newspapers,  although  not  yet 
issued  in  the  regular  volumes  of  Reports. 

I  need  not  tell  you,  gentlemen,  that  what  is  said  there  of 
the  King,  applies  to  any  other  form  of  Government  equally  well, 
whether  it  be  a  republican  form  of  Government,  or  whatever  it- 
may  be.  These  doctrines  belong  to  this  country  as  well  as  they 
belong  to  England.  They  belong  to  every  country  which  has 
adopted  the  common  law;  and  what  would  be  due  to  a  King  in 
the  actual  possession  of  the  Government  in  England,  under  our 
statutes  and  decisions,  and  under  the  rules  adopted  here,  would 
be  equally  due  to  a  President  of  the  United  States  in  any  part 
of  the  country  in  which  we  live. 

I  have  only  to  call  your  attention,  in  that  connection,  in 
opening  the  defence,  to  what  the  condition  of  things  was  in  the 
South  at  the  time  the  acts  charged  in  the  indictment  occurred. 
You  will  bear  in  mind  there  is  no  pretence  in  this  case  that  any 
one  of  these  prisoners  had  anything  whatever  to  do  with  the 
initiation  of  this  controversy, — with  me  overthrow  or  disappear 
ance  of  the  United  States  authority  in  those  Confederate 
States,  or  with  any  act  occurring  anterior  to  the  2d  of  June, 
when  this  vessel,  the  Savannah,  started  upon  her  career. 
Nothing,  so  far,  appears,  and,  in  reality,  nothing  can  be  made 
to  appear,  to  show  any  event,  before  that  time,  with  which  they 
were  connected. 

The  question,  then,  is,  What  was  the  state  of  things  existing 
in  Charleston,  and  in  the  Confederate  States,  at  that  time  ?  In 
the  course  of  the  evidence,  we  will  lay  that  before  you,  in  the 
completest  form  it  can  be  laid.  We  will  show  you,  by  the 
official  documents,  by  the  messages  of  the  President,  by  procla 
mations,  and  by  the  Acts  of  Congress  themselves,  that  there  was 
not  an  officer  of  the  United  States  exercising  jurisdiction  in  one 
of  these  Confederate  States — not  a  Judge,  or  Marshal,  or  District 
Attorney,  or  any  other  officer  by  whom  the  Government  hu«l 
been  previously  administered  on  the  part  of  the  United  States. 
Every  one  of  them  had  resigned  his  office.  This  new  Govern 
ment  had  been  formed.  It  was  the  existing  Government,  which 
had  replaced  the  United  States  in  all  these  States,  long  anterior 
to  the  time  that  this  vessel  was  fitted  out  and  sailed  from  the 


OF  THE    SCHOONER    SAVANNAH.  89 

port  of  Charleston  ;  and  upon  these  questions,  whether  that  was 
a  de  jure  or  de  facto  Government,  we  say  it  was  the  existing 
Government  that  was  in  authority  over  these  men — that  exer 
cised  the  power  of  life  and  death  over  them,  for  it  had  Courts 
administering  its  decrees,  as  well  as  every  other  form  and  all 
the  other  insignia  of  power;  and  they  were  justified  by  over 
ruling  necessity,  and  by  every  other  title,  in  yielding  obedience 
to  that  Government,  and  in  yielding  their  allegiance  to  it,  as  the 
cases  I  have  read  decide;  and  that  duty  enjoined  upon  their 
consciences  to  aid  and  support  it  by  all  means  in  their  power 
from  that  time  forward,  until  there  was  another  Government 
over  them. 

I  say,  therefore,  gentlemen,  that  this  was  not  a  commission 
issued  by  a  "person,  to  wit,  one  Jefferson  Davis."  I  say  it  was 
a  commission  issued  by  several  of  the  States  of  the  Union, 
represented,  if  you  please,  by  Jefferson  Davis,  and  by  authori 
ty,  in  fact,  from  those  States,  and  from  the  Government  in  force 
over  them.  And  more  than  that,  gentlemen,  to  bring  the  case 
still  more  clearly  within  the  authorities  I  have  read  to  you,  and 
which  yon,  no  doubt,  carry  in  your  minds,  we  will  show  by  the 
declarations  of  the  Presidents  of  the  United  States — by  the  decla 
ration  of  Mr.  Buchanan,  in  December,  1860,  and  by  the  declara 
tion  of  Mr.  Lincoln,  on  the  4th  of  March,  1861 — that  neither  of 
them,  at  either  of  those  dates,  intended  to  interfere,  or  to  at 
tempt  to  interfere,  by  force,  with  this  existing  Government. 
They  both,  publicly  and  solemnly,  in  the  presence  of  the  United 
States,  declared  that  they  would  not  attempt,  by  any  forcible 
invasion  of  those  States,  to  overthrow  the  Government  estab 
lished  over  them ; — that  there  would  be  no  "  invasion,"  is  the 
expression ; — that  they  would  leave  it  to  the  sober  second 
thought  of  the  people  of  those  States,  by  process  of  time,  by 
maturer  thought  and  better  reflection,  to  return,  probably,  to 
their  former  position  under  the  Government  of  the  United 
States.  And  what  were  men  to  do,  in  that  condition  of  things, 
in  the  State  of  South  Carolina,  in  the  State  of  Georgia,  or  in 
any  one  of  those  States,  with  not  an  officer  of  the  United  State* 
to  protect  them — with  not  a  Court  of  Justice  to  protect  them — 
with  Courts  of  Justice,  on  the  contrary,  organized  by  the  new 
Government,  and  exercising  dominion  of  life  and  death,  and 
every  other  dominion  that  Government  could  exercise — but  to 
yield  their  allegiance  to  it,  and  from  thenceforth  to  support  it, 
as  honest  men  should  do,  who  yield  their  allegiance  to  the 
Government  ? 

As  I  said  before,  in  respect  to  this  question,  even  if  this 
were  a  voluntary  act  on  the  part  of  the  prisoners — if  they  were 
not  controlled  by  necessity — if  they  had  a  state  of  things 
before  them  which  authorized  them  to  believe  that  their  con- 


90  TRIAL    OF   THE   OFFICERS    AND    CREW 

duct  was  right — that  the  States  did  nothing  more  than  they  had 
a  right  to  clo — they  were  justified  in  giving  allegiance  to  the 
Government  in  existence.  We  have  nothing  to  say  as  to  the 
correctness  of  the  political  views  or  opinions  of  the  prisoners 
whatever.  The  question  is,  What  did  these  men  believe — what 
were  they  taught  to  believe,  by  your  own  expounders  of  the 
Constitution — what  did  they  conscientiously  and  sincerely  be 
lieve  ?  When  they  acted  under  this  commission,  did  they  believe 
that  it  wTas  a  legitimate  authority,  and  had  they  full  color  for 
the  belief  which  they  held  ? 

And  now,  gentlemen,  another  point  that  we  shall  maintain 
before  you  is,  that  under  the  Constitution  of  the  United  States, 
those  States  had  color  of  authority  to  grant  this  commission ; 
and  that  the  executive  government  of  the  State  had  the  juris 
diction  to  decide,  for  all  the  citizens  of  the  State,  whether  the 
emergency  for  taking  hostile  proceedings  against  the  General 
Government  had  arrived,  or  not.  And  I  know  that,  in  saying 
that,  I  am  speaking  to  this  Jury  an  unpalatable  doctrine,  at  the 
present  day ;  but  it  is  a  doctrine  which  is  amply  borne  out  by 
the  cotemporaneous  expositions  of  the  Constitution,  penned  by 
its  own  framers,  by  the  decisions  of  the  Courts,  and  by  authori 
ties  on  which  we  are  accustomed  to  rely  for  questions  of  that 
character. 

Now,  the  Constitution  of  the  country  is  a  complex  one. 
There  are  two  sovereigns  in  every  State,  exercising  allegiance 
over  the  inhabitants  of  the  State.  The  one  sovereign  is  the 
United  States  of  America,  and  the  other  sovereign  is  the  State 
in  which  the  citizen  lives.  And  when  I  say  that,  I  am  speaking 
in  the  language  of  the  Supreme  Court  of  the  United  States 
itself,  over  and  over  repeated,  as  late  as  the  21st  of  Howard's 
Reports  (but  a  few  removes,  I  believe,  from  the  last  volume 
issued  from  that  Court),  without  a  dissenting  voice.  The  theory 
of  our  Government  is,  that  the  States  are  sovereign  and  inde 
pendent,  and  that,  in  coming  into  the  Union,  they  have  retained 
that  sovereignty  and  independence  for  every  purpose,  and  in 
every  case,  except  those  in  which  an  express  grant  of  power 
has  been  made  to  the  Government  of  the  United  States,  either 
in  express  words,  or  by  necessary  implication ;  and  the  Courts 
have  held,  over  and  over  again,  that  any  act  of  the  General 
Government  of  the  United  States,  which  transcends  the  express 
grant  of  power  made  by  the  Constitution,  is  absolutely  void,  to 
all  intents  and  purposes  whatever. 

And  more  than  that,  gentlemen,  the  citizen  of  a  State  cannot 
only  commit  treason  against  the  United  States,  or  other  kindred 
political  offences ;  but  he  can,  in  like  manner,  commit  treason 
against  the  State  in  which  he  lives,  or  other  kindred  political 
offences  against  its  government. 


OF   THE    SCHOONER    SAVANNAH.  91 

The  Constitution  of  the  United  States  defines  treason  to  be, 
•"  levying  war  against  the  United  States,  or  adhering  to  their 
enemies,  giving  them  aid  and  comfort."  The  Constitution  of 
the  State  of  New  York  defines  treason  against  the  State  of  New 
York  to  be,  "  levying  war  against  the  State,  or  adhering  to  its 
enemies,  giving  them  aid  and  comfort."  The  Constitution  of 
South  Carolina  defines  and  punishes  treason  against  the  State, 
in  the  language  of  the  old  English  statute,  bringing  it  to  pre 
cisely  the  same  thing. 

As  I  said,  therefore,  the  citizen  of  New  York  or  the  citizen 
of  South  Carolina  (because,  whether  in  one  or  the  other  locality, 
it  is  the  same  thing)  is  under  two  sovereigns,  owing  allegiance 
to  each  of  them — the  sovereign  State  in  which  he  is,  owning 
the  whole  mass  of  residuary  power  (as  it  has  been  happily  ex-- 
pressed  in  the  decisions  of  the  Court)  beyond  the  express,  limit 
ed  power  granted  to  the  Federal  Government  by  the  Constitu 
tion  of  the  United  States. 

I  want  to  call  your  attention  to  another  thing,  as  I  go  along 
with  this  line  of  the  argument.  I  contend  that,  among  the 
powers  which  have  been  delegated  to  the  State  governments 
by  the  Constitutions  of  the  States,  is  the  power  in  the  executive 
government  of  the  State,  co-ordinately  with  the  General  Gov 
ernment,  to  decide  whether  itself  or  the  General  Government 
has  transcended  the  line  which  bounds  their  respective  juris 
dictions,  upon  any  case  in  which  a  collision  may  arise  between 
them,  which  affects  the  public  domain  of  the  State,  or  the 
whole  State,  or  its  citizens,  considered  as  a  body  politic.  And 
you  will  see,  in  a  moment,  the  reason  why  I  state  my  proposi 
tion  in  that  way. 

You  have  all  heard  of  what,  in  the  history  of  the  country, 
has  been  called  nullification,  and  you  probably  all  understand 
very  nearly  what  that  is.  By  nullification,  as  it  has  been 
spoken  of  in  the  history  of  our  country,  was  meant  the  claim 
on  the  part  of  a  State,  by  a  convention  of  its  people,  or  other 
wise,  to  decide  that  the  laws  of  the  United  States  should  not 
operate  within  its  limits  upon  its  citizens,  in  cases  where  the 
law  could  legitimately  operate  upon  individual  citizens.  Be 
cause  you  will  all  recollect  that  the  laws  of  the  United  States, 
in  their  operation  throughout  the  Union — their  criminal  laws, 
laws  for  the  collection  of  duties,  and  similar  laws — operate 
upon  individual  citizens,  without  reference  to  whether  they 
are  citizens  of  one  State  or  another.  The  law  operates  upon 
them  as  people  of  the  United  States.  And  therefore,  if  you 
are  carrying  on  business  in  the  port  of  New  York,  and  a  con 
signment  comes  to  you,  it  is  a  question  between  you  as  a  citi 
zen  of  the  United  States  and  the  Government  whether  the  tariff, 
under  which  duties  are  attempted  to  be  collected  is  valid,  as 


92  TRIAL   OF   TUB   OFFICERS   AND   CREW 

between  you  and  the  Government,  or  not — whether  it  was 
legitimate  for  Congress  to  pass  that  tariff;  and,  in  all  cases 
arising  on  these  subjects,  the  Constitution  has  provided  a  tri 
bunal,  an  arbiter,  which  is  supreme  and  final,  without  any  ap 
peal.  For  instance,  if  you  deny  the  validity  of  the  law  under 
which  duties  are  attempted  to  be  collected  upon  the  goods  im 
ported  by  you,  and  the  Collector  attempts  to  collect  them,  you 
refuse  to  pay,  or  pay  under  protest, — and  the  case  must  come 
into  the  District  Court  of  the  United  States  ;  and  if  the  Court 
decides  that  the  law  was  unconstitutional,  you  get  immediate 
redress  ;  if  it  decides  that  it  was  constitutional,  the  question 
can  be  carried  to  the  Supreme  Court  of  the  United  States,  and 
there  finally  settled.  And,  therefore,  I  say  that  in  all  cases  that 
come  within  the  purview  of  the  judicial  department  of  the 
Government,  the  laws  of  the  United  States,  as  administered  by 
the  Courts,  and  their  decisions,  bind  the  citizens  of  the  States 
in  every  part  of  the  land. 

But,  gentlemen,  there  are  an  immense  class  of  cases  con 
stantly  arising  where  no  opportunity  can  ever  be  presented  to 
a  Court  to  pass  upon  them,  which  were  never  intended  to  be 
passed  upon  by  a  Court,  which  are  cases  of  collision  between 
the  executive  department  of  the  General  Government  and  the 
State  government  in  matters,  as  I  expressed  it  to  you  before, 
affecting  the  public  domain,  or  the  State  or  its  citizens  as  a 
body  politic.  As  laid  down  by  the  expounders  of  the  Consti 
tution  of  the  United  States,  that  instrument  is  one  to  whieh 
the  States  are  parties,  as  well  as  the  people  of  the  United  States 
and  people  of  each  State. 

Suppose  a  case  of  this  kind.  It  is  not  a  case  likely  to  arise  ; 
but  every  case  may  arise,  as  we  have  been  sadly  admonished 
by  the  events  of  the  last  few  months.  Suppose  we  had  a 
President  in  the  executive  chair  at  Washington  who  was  a  citi 
zen  of  the  State  of  Massachusetts,  and  greatly  interested  in  the 
prosperity  of  the  commerce  of  the  City  of  Boston  ;  and  suppose 
that,  being  a  wicked  man  (for  wicked  men  have  been  some 
times  elected  to  offices  in  this  and  every  country),  he  had  con 
ceived  the  iniquitous  design  of  ruining  the  commerce  of  New 
York,  for  the  purpose  of  benefiting  the  commerce  of  the  City 
of  Boston;  and  suppose,  in  the  prosecution  of  that  wicked  de 
sign,  without  the  pretense  of  authority  to  do  so  under  the  Con 
stitution  of  the  United  States,  without  a  pretense  that  Congress 
had  passed  any  law  authorizing  him  to  do  anything  of  the 
kind,  he  should  station  a  fleet  of  vessels,  by  orders  to  the  com 
mander  of  his  squadron,  off  the  harbor  of  New  York,  and 
should  say,  from  this  day  forward  the  commerce  of  the  port  of 
New  York  is  hermetically  closed,  and  the  commerce  which  has 
formerly  gone  to  New  York  must  go  to  Boston.  Is  the  State 


OF   THE    SCHOONER    SAVANNAH.  93 

of  New  York,  under  a  condition  of  things  of  that  kind,  to  sub 
mit  to  the  closing  of  her  commerce,  to  her  ruin  and  destruc 
tion  (  Can  she  get  before  the  Courts  for  redress  against  such 
an  infringement  of  the  Constitution  by  the  President  \  How 
is  she  to  get  there?  She  cannot  go  to  the  Supreme  Court  of 
the  United  States,  for  in  the  Courts  of  the  United  States  there 
is  no  form  of  jurisdiction  by  which  the  question  can  be  brought 
before  the  Courts  by  any  possibility  whatever  ;  and  New  York 
is  a  sovereign  and  independent  State,  and,  so  far  as  she  has  not 
conceded  jurisdiction  to  the  United  States  by  the  Constitution, 
has  a  right  to  exercise  every  sovereign  and  independent  power 
that  she  has.  There  is  a  case,  therefore,  in  which  the  Courts  of 
law  can  afford  no  redress, — in  which  the  Constitution  has  erect 
ed  no  common  arbiter  between  the  General  Government  and 
the  government  of  the  State. 

Who,  then,  is  the  arbiter  in  such  a  case  ?  Why,  gentle 
men,  the  books  have  expressed  it.  It  is  the  last  argument  of 
Kings — it  is  the  law  of  might ;  and  in  case  of  a  collision  of  that 
kind,  I  maintain  before  you,  upon  this  trial,  that  the  State  has 
a  right  to  redress  herself  by  force  against  the  General  Govern 
ment  ;  that  she  has  a  right,  if  necessary,  to  commission  cruisers, 
to  drive  the  squadron  away  from  the  port  of  New  York  ;  and 
she  has  a  right,  if  more  effectual,  to  commission  private  armed 
vessels  to  aid  in  driving  them  away,  or  to  capture  or  subdue 
them.  There  being  no  common  arbiter  between  her  and  the 
General  Government  in  a  case  of  that  kind,  she  has  a  right  to 
use  force  in  redressing  herself,  and  to  take  the  power  into  her 
own  hands. 

And  the  authorities  are  uniform  upon  that  subject.  I  have 
been  obliged  to  detain  you  so  long  that  I  shall  not  read  them 
to  you  ;  but  I  have  them  collected  before  me,  and  in  the  future 
discussions  which  may  take  place  before  the  Court  I  shall  be 
able  to  show  that  that  right  was  maintained  by  Hamilton,  one 
of  the  most  distinguished  members  of  the  Convention  who 
helped  to  frame  the  Constitution,  and  the  strongest  advocate 
of  placing  large  powers  in  the  hands  of  the  Federal  Govern 
ment  ;  by  Madison,  Jefferson,  and  all  the  Fathers  of  the  Con 
stitution,  and  by  all  who  have  written  upon  the  subject ;  that 
it  is  a  doctrine  which  has  been  asserted  by  the  Legislature  of 
the  State  of  New  Jersey,  and,  indeed,  by  the  State  Legislatures 
of  all  the  States,  pretty  much,  in  which  the  question  has  arisen 
— that  the  Supreme  Court  of  the  United  States  have  themselves 
over  and  over  again  declared  that  the  only  safeguard  that 
existed,  under  the  Constitution,  against  the  right  of  the  State 
to  come  into  collision  with  the  General  Government,  in  all  cases 
whatever,  was  the  existence  of  the  judiciary  power,  in  cases 
where  that  was  applicable  between  them,  and  that  in  all  cases 


94  TRIAL    OF    THE    OFFICERS    AND   CREW 

where  that  judiciary  power  failed,  they  were  left  to  the  law  of 
nature  and  the  might  of  Kin^s  to  redress  themselves. 

Now,  gentlemen,  if  I  am  right  in  that  step  in  my  argu 
ment, — if  that  right  would  exist  at  any  time  or  under  any  cir 
cumstances, — there  must  be  some  authority,  in  the  State  that. 
has  the  jurisdiction,  to  decide  for  the  citizens  of  the  State  when 
that  occasion  has  arisen  ;  and  there  must  be  some  authority  in 
the  United  States  which  has  a  right  to  decide  for  the  Govern 
ment  of  the  United  States  when  that  occasion  has  arisen  ; 
whose  decision  (that  is,  in  the  Geneial  Government)  is  bind 
ing  for  the  people  of  all  the  States,  except  the  State  in  col 
lision  with  the  Federal  Government  and  which  makes  a  con 
trary  decision  ;  and  whose  decision,  in  that  State,  is  an 
authority  and  protection  for  all  the  citizens  of  that  State. 

I  say  to  you,  moreover,  gentlemen,  that  that  right,  under 
the  law  of  nature,  to  resist  the  attempted  usurpation  of  a 
power  which  has  not  been  granted  by  the  Constitution,  re 
sides,  in  a  State,  in  the  executive  government,  and  necessarily 
in  the  Governor  of  the  State  ;  because  you  will  recollect  one 
of  the  premises  upon  which  we  started  was,  that  all  the  resid 
uary  power  in  the  government,  beyond  what  had  been  ex- 
pres-ly  ceded  to  the  Government  of  the  United  States  by  the 
Federal  Constitution,  is,  by  the  Constitution,  reserved  to  the 
State ;  and  the  Governor  of  the  State  is  the  sentinel  upon  the 
watch-tower  for  the  protection  of  the  rights  of  the  State.  He 
is  placed  in  that  position  to  watch  the  danger  from  afar.  He 
communicates  with  the  General  Government.  Any  steps  taken 
having  reference  to  the  State,  pass  under  his  inspection  ;  and 
he  alone  has  the  materials  within  his  reach  for  knowing  the 
circumstances  and  deciding  upon  the  facts  in  regard  to  the 
question  whether  the  General  Government  is  acting  within 
the  constitutional  limit  of  its  powers,  or  whether  it  is  guilty 
of  any  usurpation  of  power,  in  any  claim  of  authority  it  makes 
with  reference  to  the  affairs  of  the  State.  Because,  in  the  case 
I  have  supposed,  of  a  President  elected  from  the  State  of  Mas 
sachusetts,  seeking  to  destroy  the  commerce  of  New  York, 
and  stationing  a  fleet  off  the  harbor,  it  is  not  likely  that  a 
President  who  was  guilty  of  such  wickedness  would  avow  that 
he  did  it  for  the  purpose  of  building  up  the  commerce  of  Bos 
ton  and  destroying  that  of  New  York.  No  ;  he  would  say  that 
he  had  notice  of  a  hostile  invasion — a  fleet  leaving  the  coast  of 
Great  Britain  or  of  some  other  maritime  power  to  make  a  de 
scent  upon  New  York, — that  he  had  notice  of  some  threatened 
injury  to  New  York,  which  would  make  it  necessary  to  station 
a  fleet  there,  and  to  prevent  vessels  from  entering  or  leaving. 
The  Governor  alone  would  have  the  means  of  ascertaining 
whether  there  was  any  foundation  in  truth  for  that,  or  whether 


OF    THE    SCHOONKi:    SAVANNAH.  95 

it  was  a  mere  pretence  to  cover  his  iniquitous  purpose ;  and 
in  determining  the  case  whether  the  Federal  Government  is- 
exceeding  its  power  or  not,  or  acting  within  the  constitutional 
limit  of  its  power,  the  Governor  has  to  deal  with  a  compound 
question  of  law  and  fact,  lie  must  first  read  the  Constitution 
of  the  United  States,  and  ascertain  its  grant  of  power,  and 
then  compare  that  with  the  facts  as  presented  to  him  ;  and 
upon  that  comparison  the  jurisdiction  is  placed  in  him  to  de 
cide  whether  the  act  of  the  General  Government  is  within  its 
power,  or  a  transgression  of  it. 

He  decides  the  question,  and  what  more  have  we  then  \ 
He  is,  by  his  office,  commander-in-chief  of  the  military  and 
naval  forces  of  the  State  ;  for  the  State  can  have  both  military 
and  naval  forces.  It  has  its  militia  at  all  times.  It  is  author 
ized  expressly  by  the  Constitution  to  keep  ships  of  war,  in 
time  of  war.  There  is,  certainly,  a  prohibition  in  the  Consti 
tution  of  the  United  States  against  a  State  granting  letters  of 
marque ;  but  that  is  a  prohibition  against  its  granting  letters 
of  marque  in  a  war  against  foreign  States ;  it  has  no  reference 
whatever  to  any  possible  collision  that  may  take  place  between 
the  State  and  the  Federal  Government.  And  that  rule  is  laid 
down  by  Grotiua  and  Vattel  both  ;  for  they  both  maintain 
and  assert  the  right  of  the  people,  under  every  limited  Consti 
tution,  in  the  case  of  a  palpable  infringement  of  power  by  the 
chief  of  the  State,  forcibly  to  resist  it ;  and  GROTIUS  puts  the 
case  of  a  State  with  a  limited  Constitution,  having  both  a  King 
and  a  Senate,  in  which  the  power  of  declaring  war  was  in 
express  terms  reserved  to  the  King  alone,  and  he  says  that  by 
DO  means  prevents  the  Senate,  in  case  of  an  infringement  of 
the  Constitution  by  the  King,  from  declaring  and  making  war 
against  him  ;  because  the  phrase  is  to  be  understood  of  a  war 
with  foreign  nations  and  not  of  an  internal  war.  I  say,  there 
fore,  that  in  a  case  of  that  kind — a  palpable  infringement  by 
the  General  Government  of  the  Constitution — the  Governor  of 
the  State,  in  the  first  place,  has  the  only  means  and  the  only 
right  of  deciding  whether  that  infringement  has  taken  place. 

In  each  State  the  Governor  is  cbmmander-in-chief  of  the 
naval  and  military  forces;  he  has  a  right  to  give  military 
orders  to  citizens ;  he  has  a  right  to  order  them  to  muster  in 
the  service  of  the  State ;  and  if  they  disobey  him  they  can  be 
punished  the  same  as  they  can  in  any  civilized  country. 

And  more  than  that:  suppose  a  case  arises  of  that  kind, 
in  which  the  General  and  State  Governments  come  into  forci 
ble  collision,  and  suppose  a  citizen  should  take  arms  against 
the  State ;  there  is  the  law  of  the  State  which  punishes  for 
treason  every  citizen  of  the  State  who  adheres  to  its  enemies, 
giving  them  aid  and  comfort ;  and,  under  the  theory  of  the 


96  TKIAL   OF   THE   OFFICERS    AND    CREW 

prosecution,  if  he  adheres  to  the  State,  and  the  Federal  Gov 
ernment  should  happen  to  be  the  victor  in  the  contest,  there 
is  the  law  of  the  Federal  Government  which  punishes  him  for 
adhering  to  the  State.  So  that  the  poor  citizen  of  the  State, 
if  this  theory  be  correct,  is  to  be  punished  and  hanged,  which 
ever  party  may  succeed  in  the  unhappy  contest. 

But,  gentlemen,  the  law  perpetrates  no  such  absurdity  as 
that ;  for  the  very  moment  the  doctrine  for  which  1  contend 
is  admitted,  the  citizen,  in  a  conilict  like  that  between  the 
Federal  Government  and  the  State,  is  not  liable  to  be  consid 
ered  a  traitor  or  punished  as  such,  let  him  adhere  to  which  of 
the  two  parties  he  pleases,  in  good  faith.  The  reason  of  which 
is  clear.  He  is  the  subject  of  two  sovereigns, — the  one  the 
Federal  Government  and  the  other  the  State  in  which  he  lives. 
Either  of  these  sovereigns  has  jurisdiction  to  decide  for  him 
the  question  whether  the  other  is  committing  a  usurpation  of 
power  or  not ;  and  it  inevitably  follows  that  it'  these  two  sover 
eigns  decide  that  question  differently,  the  citizen  is  not  to  be 
punished  as  a  traitor,  let  him  adhere  to  which  he  pleases  in 
good  faith.  And  I  submit  to  you,  gentlemen,  that  is  the  only 
doctrine,  under  the  Constitution  of  the  United  States,  and  un 
der  our  complex  system  of  government,  which  can  be  admitted 
for  a  moment.  I  will  give  you  a  coniirmation  of  that.  I  have 
already  stated  to  you  the  clause  of  the  Constitution  of  the  Uni 
ted  States  which  defines  the  punishment  of  the  crime  of  trea 
son  against  the  United  States, — and  by  looking  at  the  reports 
of  the  debates  in  the  Convention  which  adopted  the  Constitu 
tion,  you  will  find  that  the  clause,  as  originally  reported  to 
the  Convention,  read :  "  Treason  against  the  United  States 
shall  consist  in  levying  war  against  the  United  States  or  any 
of  them,  or  in  adhering  to  the  enemies  of  the  United  States,  or 
any  of  them ,  giving  them  aid  and  comfort," — and  the  clause, 
as  reported,  was  amended  by  striking  out  the  words,  "  or  any 
of  them,"  and  making  it  read :  "Treason  against  the  United 
States  shall  consist  in  levying  war  against  them  or  in  adhering 
to  their  enemies,"  &c.  Therefore,  under  our  Constitution, 
treason  against  the  United  States  must  be  levying  war  against 
all  the  States  of  this  Confederacy.  It  does  not  mean  the  Gov 
ernment.  The  amendment  which  I  have  spoken  of  shows  it 
must  be  an  act  of  hostility  which  is,  in  judgment  of  law,  an 
act  of  hostility  against  all  the  States  of  the  Union.  Therefore 
I  say  that  a  citizen  who  owes  allegiance  to  a  State  of  the 
Union,  when  he  acts  in  good  faith, Bunder  the  jurisdiction  of 
one  of  the  sovereigns  to  whom  he  owes  allegiance — to  wit,  the 
State— does  not  levy  war  against  the  United  States.  He  lev 
ies  war  against  the  Government  which  claims  to  represent  him, 
in  that  case, — his  other  sovereign,  to  whom  he  equally  owes 


OF   THK    SCHOONER    SAVANNAH.  97 

allegiance,  deciding  that  that  Government  is  committing  an 
usurpation  of  power;  and  he  is  acting  under  the  authority  of 
those  in  whom  he  rightly  and  justly  reposes  faith, — to  whom 
has  been  delegated  the  right  to  decide  ;  and  however  the  Gov 
ernor  of  the  State  may  be  punished  by  impeachment,  if  he  has 
acted  in  bad  faith,  the  citizen  cannot  be  subject  to  the  halter 
for  doing  that  which  he  was  under  a  legal  obligation  to  do. 

Ihen,  gentlemen,  to  show  the  application  of  the  rule  for 
which  I  have  been  contending — and  with  the  necessary  details 
of  which  I  fear  I  must  have  wearied  you — to  the  case  in  hand  : 
The  moment  it  is  conceded  that  any  possible  case  can  arise  in 
which  a  State  would  have  the  right  to  resist  by  force  the  Gen 
eral  Government, — the  moment  it  is  conceded  that  it  is  the 
Governor  of-  the  State,  who,  co-ordinately  with  the  President 
of  the  Union,  has  a  right  to  decide  that  question  for  himself, — 
then  I  say  we  have  nothing  whatever  to  do  with  the  question, 
whether,  under  the  unhappy  circumstances  which  have  arisen, 
the  Governor  of  the  State,  or  of  any  of  the  States,  decided  right 
or  wrong.  We  know  they  did  claim  that  the  General  Govern 
ment  was  usurping  power  which  did  not  belong  to  it.  In  fact, 
I  think  we  have  the  confession  of  the  President  of  the  United 
States  that,  with  an  honest  heart  and  with  honest  purposes, 
which  I  believe  have  actuated  him  all  through,  he  has,  as  he 
says,  for  the  preservation  of  the  Union,  the  hope  of  humanity 
in  all  ages,  and  the  greatest  Government,  as  I  shall  ever  be 
lieve,  that  man  has  ever  created, — that  he  has  been  compelled 
to,  and  did,  usurp  power  which  did  not  belong  to  him.  Presi 
dent  Buchanan,  before  and  after  this  controversy  arose,  as 
serted  plainly  and  unequivocally  that  he  had  searched  the 
Constitution  and  laws  of  the  United  States  for  the  purpose  of 
finding  any  color  of  authority  for  the  invasion  of  a  State  by 
military  force,  or  the  using  of  force  against  it ;  and  that  he 
could  find  no  such  warrant  in  the  Constitution.  He  was  right. 
There  was  nothing  of  the  kind  in  the  Constitution ;  but  he 
failed  to  see  (in  my  humble  judgment)  that  the  law  of  nature 
^ave  him  the  power  to  enforce  the  legitimate  authority  of  the 
Union,  as  it  gave  to  the  State  government  the  power  to  repel 
usurpation.  President  Lincoln,  when  he  assumed  the  reins  of 
power,  admitted  that  there  was  a  doubt  on  that  subject.  He 
declared  at  first  that  it  was  not  expedient  to  exercise  that 
power,  and  that  he  would  not  exercise  it.  He  changed  his 
mind  afterwards,  and  did  exercise  it;  and  on  the  13th  of  April 
he  issued  a  proclamation  calling  for  75,000  volunteers,  the  first 
duty  assigned  to  whom,  as  he  stated  in  his  proclamation,  would 
be  to  invade  the  Southern  StaUs,  for  the  purpose  of  recaptur 
ing  the  forts  and  retaking  the  places  that  had  passed  out  of  the 
jurisdiction  of  the  United  States.  And  in  a  subsequent  procla- 
7 


98  TRIAL    OF   THE    OFFICERS    AND    CREW 

ination  he  declared  that  he  had  granted  to  the  military  com 
manders  of  these  forces,  without  the  sanction  of  an  Act  of 
Congress,  authority  to  suspend  the  writ  of  habeas  corpus,  within 
certain  limits  and  in  certain  cases,  in  those  States.  And  he 
makes  the  frank  admission  that,  in  his  own  belief  at  least, 
some  of  the  powers  which  he  had  found  himself  compelled  to 
exercise  were  not  warranted  in  the  Constitution  of  the  Unite  I 
States. 

Now  these  acts  of  hostility  complained  of  in  the  indictment 
took  place  long  subsequent  to  that.  This  proclamation  was  in 
the  month  of  April.  These  commissions  were  not  issued,  and 
the  Act  of  the  Confederate  States  to  authorize  their  issue  was 
not  passed,  until  some  time  afterwards — after  they  had  learned 
of  this  proclamation ;  and  this  commission  was  not  granted 
until  the  month  of  June  subsequent. 

I  say,  therefore,  a  case  was  presented  for  the  exercise  of  the 
jurisdiction  of  the  Government  of  the  United  States,  to  decide 
whether  it  was  exercising  its  rightful  powers,  under  the  Con 
stitution,  and  for  the  Governor  of  the  State  to  decide,  for  the 
State,  that  same  question ;  and  that  an  unhappy  case  of  col 
lision,  ever  to  be  regretted  and  deplored,  had  arisen  between 
the  Government  of  the  United  States  and  the  Government  of 
those  States;  and  I  say  that  the  citizens  of  any  one  of  those 
States  owing  the  duty  of  allegiance  to  two  sovereigns — to  the 
government  of  their  State  and  to  the  Government  of  the  United 
States — had  a  right  honestly  to  make  their  election  to  which 
of  the  two  sovereigns  they  would  adhere,  and  are  not  to  be 
punished  as  traitors  or  pirates  if  they  have  decided  not  wisely, 
nor  as  we  would  have  done  in  the  section  of  the  country  where 
wo  live. 

I  am  sorry,  gentlemen,  to  detain  you  on  the  question ;  but 
it  is  a  most  important  one — one  that  enters  into  the  very  mar 
row  of  this  case  ;  and  we  do  claim  that  the  issuing  of  this  com 
mission,  whether  on  the  footing  of  its  having  been  issued  by  a 
de  facto  Government,  or  by  authority  from  tlie  State,  consider 
ing  it  as  remaining  under  the  Constitution,  was  a  commission 
that  forms  a  protection  to  the  defendants,  and  one  which  is 
not  within  the  purview  of  the  Act  of  1790  ;  because  it  was  not, 
in  the  language  of  that  section,  a  commission  taken  by  a  citi- 
/on  of  the  United  States  to  cruise  against  other  citizens  of  the 
United  States,  either  from  &  foreign  Prince  or  State,  or  a  per- 
M)ii  merely. 

You  will  observe  that  if  the  claim  of  the  Confederate 
States,  that  the  ordinances  of  secession  are  valid,  be  correct, 
then  it  is  true  that  they  are  foreign  States ;  but  their  citizens 
have  ceased  to  be  citiwns  of  the  United  States,  and  are  there- 


OF    THK    Si'HOONEK    .SAVANNAH.  99 

fore  not  within  the  purview  of  the  ninth  section  of  the  Act  of 
1790. 

If,  on  the  contrary,  the  claim  on  the  part  of  the  Govern 
ment  of  the  United  States,  that  these  ordinances  are  absolutely 
void,  be  correct,  then  the  States  are  still  States  of  this  Union, 
and  the  commission,  being  issued  by  their  authority,  is  not  a 
commission  issued  by  a  foreign  State,  and  therefore  the  case 
is  not  within  the  purview  of  the  ninth  section  of  the  Act  of 
1790. 

I  must  allude  very  brieflv,  before  closing,  to  another  ground 
on  which  this  defence  will  be  placed  :  and  that  is,  that  con 
ceding  (if  we  were  obliged  to  concede)  that  this  was  not  an 
authority,  such  as  contemplated,  to  give  protection  to  cruisers 
as  privateers,  there  was  a  state  of  war  existing  in  which  hostile 
forces  were  arrayed  against  each  other  in  this  country,  and 
which  made  this  capture  of  the  Joseph  a  belligerent  act,  even 
obliterating  State  lines  altogether,  for  the  purpose  of  the  argu 
ment. 

But  before  I  pass  from  what  I  have  said  to  you  on  the  sub 
ject  of  the  claim  of  authority  of  the  States  of  this  Union  to 
come  into  collision  with  the  General  Government,  allow  me  to 
call  attention  to  the  forcible  precedents  shown  in  the  history 
of  our  own  glorious  Revolution,  when  the  thirteen  Colonies, 
numbering  little  more  than  three  millions,  instead  of  thirty, 
separated  from  Great  Britain.  At  the  time  when  that  occur 
red,  in  1776,  this  very  statute  of  1790  was  in  force  in  England, 
as  1  have  shown  you.  It  was  passed  in  England,  if  I  recollect 
right,  in  1694.  The  position  of  the  thirteen  Colonies  towards 
the  mother  country,  at  that  time,  was  precisely  the  position 
that  those  States  which  call  themselves  the  "  Confederate 
States"  now  occupy  towards  the  General  Government  of  the 
Union. 

Appealing  to  God,  as  the  Supreme  Ruler  of  the  Universe, 
for  the  rectitude  of  their  intentions,  and  acknowledging  their 
accountability  to  no  other  power,  they  had  claimed  to  resist 
the  usurpation  of  the  King  of  Great  Britain.  They  had  not 
even  claimed,  at  the  time  of  which  I  speak — for  I  speak  of  the 
end  of  the  year  1775  and  the  beginning  of  1776 — to  declare 
their  independence  and  to  throw  oif  their  subjection  to  Great 
Britain.  At  that  very  early  day  there  were  very  few  in  these 
Colonies  that  contemplated  a  thing  of  that  kind,  or  whose 
minds  could  be  brought  to  contemplate  such  an  act.  They 
had  risen  in  resistance  against  what,  they  claimed  to  be  arbi 
trary  power  ;  they  claimed  that  the  King  of  Great  Britain  had 
encroached  upon  their  rights  and  privileges  in  a  manner  not 
warranted  by  the  Constitution  of  Great  Britain.  They  did  not 
claim  to  secede  from  Great  Britain ;  they  did  not  claim  to 


100  TRIAL   OF   THE   OFFICERS    AND   CREW 

make  themselves  independent  of  subjection  to  her  rule  ;  they 
claimed  to  stop  the  course  of  usurpation  which,  they  held,  had 
been  commenced;  and  they  proposed  to  return  under  subjec 
tion  to  the  British  crown  the  very  moment  that  an  accommo 
dation  should  be  made,  yielding  allegiance  to  the  King  of 
Great  Britain  as  in  all  time  before.  And  now,  gentlemen,  on 
the  23d  March,  1776,  on  a  Saturday,  the  little  Continental  Con 
gress  was  sitting  in  the  chamber,  of  which  you  have  often  seen 
the  picture,  composed  of  the  great,  wrise,  and  good  men,  who 
sat  there  in  deliberation  over  the  most  momentous  event  that 
has  ever  occurred  in  modern  times,  if  we  except  that  now 
agitating  and  convulsing  our  beloved  country.  I  never  heard 
one  of  those  men  stigmatized  as  a  pirate.  I  never  heard  one 
of  those  men  calumniated  as  an  enemy  of  the  human  race.  I 
have  often  heard  them  called  the  greatest,  wisest,  and  best  men 
that  ever  lived  on  the  face  of  God's  earth.  I  will  read  to  you 
what  occurred  on  the  23d  March,  1776 ; — they  being  subjects 
of  the  King  of  Great  Britain,  and  having  never  claimed  to 
throw  off  allegiance  to  him,  but  claiming  that  he  was  usurping 
power  which  did  not  belong  to  him,  and  that  they,  as  represent 
atives  of  the  thirteen  Colonies  of  America,  were  the  judges  of 
that  question  and  those  facts,  as  we  claim  that  the  States  are 
now  the  judges  of  this  question  and  these  facts.  They  adopted 
the  following  preamble  and  resolutions : 

"  The  Congress  resumed  the  consideration  of  the  Declaration,  which  was 
agreed  to,  as  follows: 

"WHEREAS,  The  petitions  of  the  United  Colonies  to  the  King  for  the 
redress  of  great  and  manifold  grievances  have  not  only  been  rejected,  but 
treated  with  scorn  and  contempt,  and  the  opposition  to  designs  evidently 
formed  to  reduce  them  to  a  state  of  servile  subjection,  and  their  necessar}' 
defence  against  hostile  forces  actually  employed  to  subdue  them,  declared 
rebellion ; 

"  AND  WHEREAS,  An  unjust  war  hath  been  commenced  against  them 
which  the  commanders  of  the  British  fleets  and  armies  have  prosecuted  and 
still  continue  to  prosecute  with  their  utmost  vigor,  in  a  cruel  manner,  wast 
ing,  spoiling,  and  destro}ring  the  country,  burning  houses  and  defenceless 
towns,  and  exposing  the  helpless  inhabitants  to  every  misery,  from  the  in 
clemency  of  the  winter,  and  not  only  urging  savages  to  invade  the  country, 
but  instigating  negroes  to  murder  their  masters; 

"AND  WHEREAS,  The  Parliament  of  Great  Britain  hath  lately  passed  an 
Act,  affirming  these  Colonies  to  be  in  open  rebellion  ;  forbidding  all  trade  and 
commerce  with  the  inhabitants  thereof  until  they  shall  accept  pardons,  and 
submit  to  despotic  rule;  declaring  their  property  wherever  found  upon  the 
water  liable  to  seizure  and  confiscation,  and  enacting  that  what  had  been 
done  there  by  virtue  of  the  royal  authority  were  just  and  lawful  acts,  and 
shall  be  so  deemed  ;  from  all  which  it  is  manifest  that  the  iniquitous  schemes 
concerted  to  deprive  them  of  the  liberty  they  have  a  right  to  by  the  laws  of 
nature,  and  the  English  Constitution,  will  be  pertinaciously  pursued.  It 
being,  therefore,  necessary  to  provide  for  their  defence  and  security,  and 
justifiable  to  make  reprisals  upon  their  enemies  and  otherwise  to  annoy  them 
according  to  the  laws  and  usages  of  nations  ;  the  Congress,  trusting  that  such 


OF   THE     SCHOONER  SAVANNAH.  101 

of  their  friends  in  Great  Britain  (of  whom  it  is  confessed  there  are  many  en 
titled  to  applause  and  gratitude  for  their  patriotism  and  benevolence,  and  in 
whose  favor  a  discrimination  of  property  cannot  be  made)  as  shall  suffer  by 
captures  will  impute  it  to  the  authors  of  our  common  calamities,  Do  Declare 
and  Resolve  as  follows,  to  wit : 

"  Resolved,  That  the  Inhabitants  of  these  Colonies  be  permitted  to  fit  out 
armed  vessels  to  cruise  on  the  enemies  of  these  United  Colonies. 

"  Resolved,  That  all  ships  and  other  vessels,  their  tackle,  apparel  and  fur 
niture,  and  all  goods,  wares  and  merchandize  belonging  to  any  inhabitant  of 
Great  Britain,  taken  on  the  high  seas,  or  between  high  and  low  water-mark, 
by  any  armed  vessel  fitted  out  by  any  private  person  or  persons,  and  to 
whom  commissions  shall  be  granted,  and  being  libelled  and  prosecuted  in 
any  Court  erected  for  the  trial  of  maritime  affairs  in  any  of  these  Colonies, 
shall  be  deemed  and  adjudged  to  be  lawful  prize,  and  after  deducting  and 
paying  the  wages  which  the  seamen  and  mariners  on  board  of  such  captures 
as  are  merchant  ships  and  vessels  shall  be  entitled  to,  according  to  the  terms 
of  their  contracts,  until  the  time  of  their  adjudication,  shall  be  condemned 
to  and  for  the  use  of  the  owner  or  owners,  and  the  officers,  marines,  and 
mariners  of  such  armed  vessels,  according  to  such  rules  and  proportions  as 
they  shall  agree  on.  Provided,  always,  that  this  resolution  shall  not  extend 
to  any  vessel  bringing  settlers,  arms,  ammunition  or  warlike  stores  to  and  for 
the  use  of  these  Colonies,  or  any  of  the  inhabitants  thereof  who  are  friends 
to  the  American  cause,  or  to  such  warlike  stores,  or  to  the  effects  of  such 
settlers. 

"  Resolved,  That  all  ships  or  vessels,  with  their  tackle,  apparel  and  furni 
ture,  goods,  wares  and  merchandize,  belonging  to  any  inhabitant  of  Great 
Britain,  as  aforesaid,  which  shall  be  taken  by  any  of  the  vessels  of  war  of 
these  United  Colonies,  shall  be  deemed  forfeited ;  one-third,  after  deducting 
and  paying  the  wages  of  seamen  and  mariners,  as  aforesaid,  to  the  officers 
and  men  on  board,  and  two-thirds  to  the  use  of  the  United  Colonies. 

"  Resolved,  That  all  ships  or  vessels,  with  their  tackle,  apparel  and  goods, 
wares  and  merchandizes,  belonging  to  any  inhabitant  of  Great  Britain,  as 
aforesaid,  which  shall  be  taken  by  any  vessel  of  war  fitted  out  by  and  at  the 
expense  of  any  of  the  United  Colonies,  shall  be  deemed  forfeited  and  divided, 
after  deducting  and  paying  the  wages  of  seamen  and  mariners,  as  aforesaid, 
in  such  manner  and  proportions  as  the  Assembly  or  Convention  of  such  Colo 
ny  shall  direct" 

There  are  two  or  tbree  other  resolutions,  which  it  is  not 
necessary  for  me  to  trouble  you  with  the  reading  of.  You  will 
bear  in  mind  that  there  were  no  two  sovereignties  over  these 
United  Colonies  at  that  time.  They  had  no  sovereignty  or  in 
dependence  whatever  ;  they  were  mere  Provinces  of  the  British 
Crown  ;  the  Governors  derived  their  appointment  from  the 
Crown  itself,  or  from  the  proprietors  of  the  Colonies ;  and  these 
wise  and  good  men,  on  the  23d  March,  1776,  claimed  that  the 
King  of  Great  Britain  had  usurped  powers  which  did  not  be 
long  to  him  under  the  Constitution  of  Great  Britain,  and  that 
they  had  the  right  to  resist  his  encroachments  ;.  and  they 
authorized  letters  of  marque  to  cruise  against  the  ships  and 
property  of  their  fellow  subjects  of  Great  Britain,  because  of 
the  state  of  things  which  arose  from  a  collision  between  them 
and  the  Crown.  They  were  enemies,  and  although  they  re 
gretted  that  they  had  to  injure  in  their  property  men  who  were 


102  TRIAL   OF   THE    OFFICERS    AND   CREW 

their  friends,  they  trusted  they  would  excuse  them,  owing  to 
the  inevitable  necessity  that  existed  and  the  impossibility  of 
discriminating  between  friends  and  foes  in  the  case  of  inhabit 
ants  of  Great  Britain. 

And  now,  gentlemen,  to  trouble  you  with  one  more  brief 
reference,  let  me  show  you  what  took  place  before  that  Act  of 
the  Provincial  Congress  was  passed  in  the  Province  of  Massa 
chusetts.  They  had  already  passed  a  Provincial  Act  of  tbc 
General  Assembly,  couched  in  similar  language,  authorizing 
cruisers  and  privateers  against  the  enemies  of  that  Province  ; 
and  you  will  see  what  occurred.  I  read  again  from  Cooper's 
Naval  History,  1st  Vol.,  p.  42.  He  is  speaking  of  the  year 
1775  : 

"The  first  nautical  enterprise  that  succeeded  the  battle  of  Lexington  was 
one  purely  of  private  adventure.  The  intelligence  of  this  conflict  was  brought 
to  Machias,  in  Maine,  on  Saturday,  the  9th  of  May,  1775,  An  armed  schoon 
er,  in  the  service  of  the  Crown,  called  the  Margaretta,  was  lying  in  port,  with 
two  sloops  under  her  convoy,  that  were  loading  with  lumber  on  behalf  of  the 
King's  Government. 

"  The  bearers  of  the  news  were  enjoined  to  be  silent, — a  plan  to  capture  the 
Margaretta  having  been  immediately  projected  among  some  of  the  more 
spirited  of  the  inhabitants.  The  next  day  being  Sunday,  it  was  hoped  that 
the  officers  of  the  schooner  might  be  seized  while  in  church  ;  but  the  scheme 
failed,  in  consequence  of  the  precipitation  of  some  engaged.  Captain  Moore, 
who  commanded  the  Margaretta,  saw  the  assailants,  and,  with  his  officers, 
escaped  through  the  windows  of  the  church  to  the  shore,  where  they  were 
protected  by  the  guns  of  their  vessel.  The  alarm  was  now  taken  ;  springs 
were  got  on'  the  Margaretta' s  cables,  and  a  few  harmless  shot  were  fired  over 
the  town  by  way  of  intimidation.  After  a  little  delay,  however,  the  schooner 
dropped  down  below  the  town  to  a  distance  exceeding  a  league.  Here  she 
was  followed,  summoned  to  surrender,  and  fired  on  from  a  high  bank,  which 
her  own  shot  could  not  reach.  The  Margaretta  again  weighed,  and  running 
into  the  bay,  at  the  confluence  of  the  two  rivers,  anchored.  The  following 
morning,  which  was  Monday,  the  llth  of  May,  four  young  men  took  posses 
sion  of  one  of  the  lumber  sloops,  and,  bringing  her  alongside  of  a  wharf,  they 
gave  three  cheers  as  a  signal  for  volunteers.  On  explaining  that  their  inten 
tions  were  to  make  an  attack  on  the  Margaretta,  a  party  of  about  thirty-five 
athletic  men  was  soon  collected.  Arming  themselves  with  firearms,  pitch 
forks,  and  axes,  and  throwing  a  small  stock  of  provisions  into  the  sloop,  these 
spirited  freemen  made  sail  on  their  craft,  with  a  light  breeze  at  northwest. 
When  the  Margaretta  observed  the  approach  of  the  sloop,  she  weighed  and 
crowded  sail  to  avoid  a  conflict  that  was  every  way  undesirable, — her  com 
mander  not  yet  being  apprised  of  all  the  facts  that  had  occurred  near  Boston. 
In  jibing,  the  schooner  carried  away  her  main-boom,  but,  continuing  to 
stand  on,  she  ran  into  Holmes'  Bay,  and  took  a  spar  out  of  a  vessel  that  was 
lying  there.  While  these  repairs  were  making,  the  sloop  hove  in  sight  again, 
and  the  Margaretta  stood  out  to  sea,  in  the  hope  of  avoiding  her.  The  breeze 
freshened,  and,  with  the  wind  on  the  quarter,  the  sloop  proved  to  be  the 
better  sailer.  So  anxious  was  the  Margaretta  to  avoid  a  collision,  that  Cap 
tain  Moore  now  cut  away  his  boats ;  but,  finding  this  ineffectual,  and  that 
his  assailants  were  fast  closing  with  him,  he  opened  afire — the  schooner  hav 
ing  an  armament  of  four  light  guns  and  fourteen  swivels.  A  man  was  killed 
on  board  the  sloop,  which  immediately  returned  the  fire  with  a  wall-piece. 


OF    THK    S(  HnoNl k    SAVANNAH.  103 

This  discharge  killed  the  man  at  the  Margarctta's  helm,  and  cleared  her 
quarter-deck.  The  schooner  broached  to,  when  the  sloop  gave  a  general  dis 
charge.  Almost  at  the  same  instant  the  two  vessels  came  foul  of  each  other. 
A  short  conflict  now  took  place  with  musketry, — Captain  Moore  throwing 
hand-grenades,  with  considerable  effect,  in  person.  This  officer  was  imme 
diately  afterwards  shot  down,  however,  when  the  people  of  the  sloop  boarded 
and  took  possession  of  their  prize.  The  loss  of  life  in  this  affair  was  not  very 
great,  though  twenty  men,  on  both  sides,  are  said  to  have  been  killed  and 
wounded.  The  force  of  the  Margaretta,  even  in  men,  was  much  the  most 
considerable  ;  though  the  crew  of  no  regular  cruiser  can  ever  equal,  in  spirit 
and  energy,  a  body  of  volunteers  assembled  on  an  occasion  like  this.  Thtre 
was,  originally,  no  commander  in  the  sloop  ;  but,  previously  to  engaging  the 
schooner,  Jeremiah  O'Brien  was  selected  for  that  station.  This  affair  was 
the  Lexington  of  the  sea, —  for,  like  that  celebrated  land  conflict,,  it  was  a 
rising  of  tjie  people  against  a  regular  force ;  was  characterized  by  a  long 
chase,  a  bloody  struggle,  and  a  triumph.  It  was  also  the  first  blow  struck 
on  the  water,  after  the  war  of  the  American  Revolution  had  actually  com 
menced." 

And  that  is  the  act,  gentlemen,  which,  instead  of  being  the 
act  of  desperadoes,  pirates,  and  enemies  of  the  human  race,  is 
recorded  in  .history  as  an  act  of  spirited  freemen.  Yon  will  re 
member  that  the  act  was  done  without  any  commission ;  it  was 
done  while  these  Provinces  were  Colonies  of  the  British  Crown  ; 
it  was  done  long  before  the  Declaration  of  Independence.  The 
Act  of  the  Provincial  Congress,  so  far  as  that  could  have  any 
validity,  authorizing  letters  of  marque,  was  not  passed  until 
afterwards,  or  the  23d  of  March.  The  Declaration  of  Inde 
pendence  was  passed  on  the  4th  July,  1776.  According  to 
the  theory  on  the  other  side,  call  this  lawful  secession — call  it 
revolution — call  it  what  you  please, — these  Confederate  States, 
as  they  are  called,  are  not  independent.  They  have  not  any 
Government — they  cannot  do  any  thing  until  their  independ 
ence  is  acknowledged  by  the  United  States.  Therefore,  accord 
ing  to  the  theory  of  the  other  -  side,  no  act  of  the  Provincial 
Congress,  no  act  of  any  of  the  United  Colonies,  had  any  va 
lidity  in  it  until  the  treaty  of  peace  between  them  and  Great 
Britain  was  signed,  in  1783.  But,  I  need  not  tell  you,  gentle 
men,  that  in  this  country,  in  all  public  documents,  in  all  public 
proceedings,  in  the  decisions  of  our  Courts,  the  actual  establish 
ment  of  the  independence  of  the  United  States  is  dated  as 
having  been  accomplished  on  the  4th  July,  1776.  All  the 
state  papers  that  run  in  the  name  and  by  the  authority  of  the 
United  States  of  America,  run  in  their  name,  and  by  their 
authority,  as  of  such  a  year  of  their  independence,  dating  from 
the  4th  July,  177t>.  Let  me,  therefore,  shew  you  what  was 
done  by  the  Colon ies,  in  1776,  before  and  after  the  date  of  the 
Declaration  of  Independence  ;  and  let  me  show  how  many  pira 
cies  our  hardy  seamen  of  those  days  must  have  committed,  on 
the  theory  of  the  prosecution  in  this  case.  I  read  again  from 
Cooper's  Naval  History : 


TRIAL    OF   THE    OFFICERS    AND    CREW 

•"  Some  of  the  English  accounts  of  this  period  state  that  near  a  hundred 
privateers  had  been  fitted  out  of  New  England  alone,  in  the  two  first  years  of 
the  war;  and  the  number  of  seamen  in  the  service  of  the  Crown,  employed 
against  the  new  States  of  America,  was  computed  at  26,000. 

"The  Colonies  obtained  many  important  supplies,  colonial  as  well  as  mili 
tary,  and  even  manufactured  articles»of  ordinary  use,  by  means  of  their  cap 
tures, — scarce  a  day  passing  that  vessels  of  greater  or  less  value  did  not  arrrive 
in  some  one  of  the  ports  of  their  extensive  coast.  By  a  list  published  in  the 
4  Remembrancer, 'an  English  work  of  credit,  it  appears  that  342  sail  of  English 
Tessels  had  been  taken  by  American  cruisers,  in  1776 ;  of  which  number  44 
were  recaptured,  18  released,  and  4  burned." 

Well,  gentlemen,  with  these  facts  staring  you  in  the  face,  I 
ask  you  if  it  is  not  flying  in  the  face  of  history — if  it  is  not  re 
jecting  and  trampling  in  the  dust  the  glorious  traditions  of  our 
own  country — to  be  asked  seriously  to  sit  in  that  jury  box  and  try 
these  men  for  their  lives,  as  pirates  and  enemies  of  the  human 
race,  on  the  state  of  things  existing  here  ?  Gentlemen,  my  mind 
may  be  under  a  strong  hallucination  on  the  subject;  but  I  can 
not  conceive  the  theory  on  which  the  prosecution  can  come 
into  Court,  on  the  state  of  things  existing,  and  ask  for  a  convic 
tion.  Remember  that,  in  saying  that,  I  am  speaking  as  a  North 
ern  man, — fur  I  am  a  Northern  man;  I  am  speaking  as  a  sub 
ject  and  adherent  to  the  Government  of  the  Union  ;  I  am  speak 
ing  as  one  who  loves  the  flag  of  this  country — as  one  who  was 
Lorn  under  it — as  one  who  hopes  to  be  permitted  to  die  under 
it ;  and  I  am  speaking  with  tears  in  my  eyes,  because  I  do  not 
wanutfc  to  see  that  flag  tarnished  by  a  judicial  murder,  and  by  an 
act  cowardly  and  dastardly,  as  I  say  it  would  be,  if  we  are  to 
treat  these  men  as  pirates,  while  we  are  engaged  in  a  hand-to- 
hand  conflict  with  them  with  arms  in  the  fleld,  and  while  they 
are  asserting  and  maintaining  the  rights  which  we  claimed  fur 
ourselves  in  former  ages.  In  God's  name,  gentlemen,  let  us,  if 
necessary,  fight  them ;  if  we  must  have  civil  war,  let  us  con 
vince  them,  by  the  argument  of  arms,  and  by  other  arguments 
that  we  can  bring  to  "bear,  that  they  are  in  the  wrong ;  let  us 
bring  them  back  into  the  Union,  and  show  them,  when  they 
get  back,  that  they  have  made  a  great  mistake ;  but  do  not  let 
us  tarnish  the  escutcheon  of  our  country,  and  disgrace  ourselves 
in  the  eyes  of  the  civilized  world,  by  treating  this  mighty  sub 
ject,  when  States  are  meeting  in  mortal  shock  and  conflict,  with 
the  ax  and  the  halter.  In  God\s  name,  let  us  have  none  of 
that  ? 

I  have  but  one  word  more  to  say,  gentlemen,  before  I  close. 
I  have  already  said  that  we  claim  that  this  commission  is  an 
adequate  protection,  considering  that  this  is  an  inter-state  war. 
It  has  been  so  considered,  and  is  now  so  considered  by  the 
Government  of  the  United  States  itself,  because,  after  the 
conflict  had  commenced  and  had  gone  on  for  some  time,  it 


OF  THE   SCHOONER   SAVANNAH.  105 

being  treated  by  the  Government  at  Washington  as  a  mere 
rebellion  or  insurrection  by  insurgent  and  rebellious  citizens  in 
some  of  the  Southern  States,  it  was  found  that  it  had  assumed 
too  mighty  proportions  to  be  treated  in  that  way,  and  there 
fore,  in  the  month  of  July  last,  the  Congress  then  in  session 
passed  an  Act,  one  of  the  recitals  of  which  was  that  this  state 
of  things  had  broken  out  and  still  existed,  and  that  the  war 
was  claimed  to  be  waged  under  the  authority  of  the  govern 
ments  of  the  States,  and  that  the  governments  of  the  States 
did  not  repudiate  the  existence  of  that  authority.  Congress 
then  proceeded  to  legislate  upon  the  assumption  of  the  fact  that 
the  war  was  carried  on  under  the  authority  of  the  governments 
of  the  States.  There  is  a  distinct  recognition  by  your  own 
Government  of  the  fact  that  this  is  an  inter-state  war,  and  that 
the  enemies  whom  our  brave  troops  are  encountering  in  the 
field  are  led  on  under  authority  emanating  from  those  who  are 
rightfully  and  lawfully  administering  the  Government  of  the 
States. 

You  will  recollect,  gentlemen,  that  in  most  of  those  States 
the  State  governments  are  the  same  as  they  were  before  this 
condition  of  things  broke  out.  There  has  been  no  change  in 
the  State  constitutions.  In  a  great  many  of  them  there  has 
been  no  change  in  the  personnel  of  those  administering  the 
government.  They  are  the  recognized  legitimate  Governors 
of  the  States,  whatever  may  be  said  of  those  claiming  to  ad 
minister  the  Government  of  the  Confederate  States. 

But,  gentlemen,  let  us  pass  from  that,  and  let  us  suppose  it 
was  not  a  war  carried  on  by  authority  of  the  States.  It  is, 
then,  a  civil  war,  and  a  civil  war  of  immense  and  vast  propor 
tions  ;  and  the  authorities  are  equally  clear  in  that  case,  that, 
from  the  moment  that  a  war  of  that  kind  exists,  captures  on 
land  and  at  sea  are  to  be  treated  as  prizes  of  war,  and  prison 
ers  treated  as  prisoners  of  war,  and  that  the  vocation  of  the 
ax  and  the  halter  are  gone.  I  refer  you  to  but  a  single  au 
thority  on  this  subject,  because  I  have  already  occupied  more 
of  your  time  than  I  had  intended  doing,  and  I  have  reason  to 
be  very  grateful  to  you  for  the  patience  and  attention  with 
which  you  have  listened  to  me  in  the  extended  remarks  that  I 
was  obliged  to  make.  I  refer  to  Yattel,  Book  3,  cap.  18,  sees. 
287,  292  and  293  : 

"  Sec.  287.  It  is  a  question  very  much  debated  whether  a  sovereign  is  bound 
to  observe  the  common  laws  of  war  towards  rebellious  subjects  who  have 
openly  taken  up  arms  against  him.  A  flatterer,  or  a  Prince  of  cruel  and  ar 
bitrary  disposition,  will  immediately  pronounce  that  the  laws  of  war  were 
not  made  for  rebels,  for  whom  no  punishment  can  be  too  severe.  Let  us 
proceed  more  soberly,  and  reason  from  the  incontestible  principles  above 
laid  down." 


106  TRIAL    OF    THE   OFFICERS    AND   CREW 

The  author  then  proceeds  to  enforce  the  duty  of  modera 
tion  towards  mere  rebels,  and  proceeds  : 

"  Sec.  292.  When  a  party  is  formed  in  a  State  who  no  longer  obey  the 
sovereign,  and  are  possessed  of  sufficient  strength  to  oppose  him ;  or  when, 
in  a  Republic,  the  nation  is  divided  into  two  opposite  factions,  and  both  sides 
take  up  arms,  this  is  called  a  civil  war.  Some  writers  confine  this  term  to  a 
just  insurrection  of  the  subjects  against  their  sovereign  to  distinguish  that 
lawful  resistance  from  rebellion,  which  is  an  open  and  unjust  resistance.  But 
what  appellation  will  they  give  to  a  war  which  arises  in  a  Republic,  torn  by 
two  factions,  or,  in  a  Monarchy,  between  two  competitors  for  the  Crown  ? 
Custom  appropriates  the  term  of  civil  war  to  every  war  between  the  members 
of  one  and  the  same  political  society.  If  it  be  between  part  of  the  citizens 
on  the  one  side,  and  the  sovereign  with  those  who  continue  in  obedience  to 
him  on  the  other,  provided  the  malcontents  have  any  reason  for  taking  up 
arms,  nothing  further  is  required  to  entitle  such  disturbance  to  the  name  of 
civil  war,  and  not  that  of  rebellion.  This  latter  term  is  applied  only  to  such 
an  insurrection  against  lawful  authority  as  is  void  of  all  appearance  of  jus 
tice.  The  sovereign,  indeed,  never  fails  to  bestow  the  appellation  of  rebels 
on  all  such  of  his  subjects  as  openly  resist  him ;  but  when  the  latter  have 
acquired  sufficient  strength  to  give  him  effectual  opposition,  and  to  oblige 
him  to  carry  on  the  war  against  them  according  to  the  established  rules,  he 
must  necessarily  submit  to  the  use  of  the  term  civil  war. 

"  Sec.  293.  It  is  foreign  to  our  purpose,  in  this  place,  to  weigh  the  reasons 
which  may  authorize  and  justify  a  civil  war ;  we  have  elsewhere  treated  of 
the  cases  wherein  subjects  may  resist  the  sovereign.  (Book  1,  cap.  4.)  Set 
ting,  therefore,  the  justice  of  the  cause  wholly  out  of  the  question,  it  only 
remains  for  us  to  consider  the  maxims  which  ought  to  be  observed  in  a  civil 
war,  and  to  examine  whether  the  sovereign,  in  particular,  is  on  such  an  oc 
casion  bound  to  conform  to  the  established  laws  of  war. 

"  A  civil  war  breaks  the  bonds  of  society  and  Government,  or  at  least  sus 
pends  their  force  and  effect ;  it  produces  in  the  nation  two  independent  par 
ties,  who  consider  each  other  as  enemies,  and  acknowledge  no  common  judge. 
Those  two  parties,  therefore,  must  necessarily  be  considered  as  thenceforward 
constituting,  at  least  for  a  time,  two  separate  bodies — two  distinct  societies. 
Though  one  of  the  parties  may  have  been  to  blame  in  breaking  the  unity  of  the 
State,  and  resisting  the  lawful  authority,  they  are  not  the  less  divided  in  fact. 
Besides,  who  shall  judge  them?  Who  should  pronounce  on  which  side  the 
right  or  the  wrong  lies  ?  On  each  they  have  no  common  superior.  They 
stand,  therefore,  in  precisely  the  same  predicament  as  two  nations  who  en 
gage  in  a  contest,  and,  being  unable  to  come  to  an  agreement,  have  recourse 
to  arms. 

"  This  being  the  case,  it  is  very  evident  that  the  common  laws  of  war — 
those  maxims  of  humanity,  moderation  and  honor,  which  we  have  already 
detailed  in  the  course  of  this  work — ought  to  be  observed  by  both  parties  in 
every  civil  war.  For  the  same  reasons  which  render  the  observance  of  those 
maxims  a  matter  of  obligation  between  State  and  State,  it  becomes  equally 
and  even  more  necessary  in  the  unhappy  circumstances  of  two  incensed  par 
ties  lacerating  their  common  country.  Should  the  sovereign  conceive  he  has 
a  right  to  hang  up  his  prisoners  as  rebels,  the  opposite  party  will  make  re 
prisals  ;  if  he  does  not  religiously  observe  the  capitulations,  anU  all  other 
conventions  made  with  his  enemies,  they  will  no  longer  rely  on  his  word ; 
should  he  burn  and  ravage,  they  will  follow  his  example ;  the  war  will  become 
cruel,  horrible,  and  every  day  more  destructive  to  the  nation." 

After  noticing  the  cases  of  the  Due  de  Montpensier  and 
Baron  des  Adrets,  he  continues  : 


OF    THE    SCHOONER    SAVANNAH.  107 

"At  length  it  became  necessary  to  relinquish  those  pretensions  to  judi 
cial  authority  over  men  who  proved  themselves  capable  of  supporting  their 
cause  by  force  of  arms,  and  to  treat  them  not  as  criminals,  but  as  enemies. 
Even  the  troops  have  often  refused  to  serve  in  a  war  wherein  the  Prince  ex 
posed  them  to  cruel  reprisals.  Officers  who  had  the  highest  sense  of  honor, 
though  ready  to  shed  their  blood  on  the  field  of  battle  for  his  service,  have 
not  thought  it  any  part  of  their  duty  to  run  the  hazard  of  an  ignominious 
death.  Whenever,  therefore,  a  numerous  body  of  men  think  they  have  a 
right  to  resist  the  sovereign,  and  feel  themselves  in  a  condition  to  appeal  to 
the  sword,  the  war  ought  to  be  carried  on  by  the  contending  parties  in  the 
same  manner  as  by  two  differennt  nations,  and  they  ought  to  leave  open  the 
same  means  for  preventing  its  being  carried  into  outrageous  extremities  and 
for  the  restoration  of  peace." 

Now,  gentlemen,  can  anything  be  more  explicit  on  this 
subject,  leaving  out  of  view  all  questions  of  the  authority  of 
the  States  or  ,of  the  Confederate  Government  to  issue  this 
commission  ?  Can  anything  be  more  pointed  or  more  direct 
on  the  question  ?  Treat  this  as  a  mere  civil  war — treat  it  as 
though  all  State  lines  of  the  Union  were  obliterated,  and  as 
though  this  was  a  common  people,  actuated  by  some  religious 
or  political  fanaticism,  who  had  set  themselves  to  cutting  each 
others'  throats — treat  it  as  a  purely  civil  strife,  without  any 
question  of  State  sovereignty  or  State  jurisdiction  connected 
with  it, — and  still  you  have  the  authority  of  Yattel,  an  author 
ity  than  which  none  can  be  higher,  as  the  Court  will  tell  you 
— and  I  could  multiply  authorities  on  that  point  from  now 
until  the  shadows  of  night  set  in — that  even  in  that  case  it  is 
obligatory  to  observe  the  laws  of  war  just  the  same  as  if  it 
was  a  combat  between  two  nations,  instead  of  between  two 
sections  of  the  same  people.  Even  if  there  was  no  commis 
sion  whatever  here,  by  any  one  having  a  color  or  pretence  of 
right  to  issue  it,  but  if  those  belonging  to  one  set  of  combat 
ants,  in  a  civil  strife  which  had  reached  the  magnitude  and 
proportions  of  which  Vattel  speaks,  had  set  out  to  cruise,  and 
had  captured  this  vessel,  I  submit  to  you  that  it  could  not  be 
treated  as  a  case  of  piracy. 

I  have  closed,  gentlemen,  the  argument  which,  on  opening 
the  case,  I  have  thought  it  necessary  to  advance  in  order  that 
you  may  be  able  to  apply  the  evidence.  Every  word  that 
Vattel  says  there  endorses  the  entreaty  which  I  have  made  to 
you,  as  you  love  your  country  and  as  you  love  her  prosperity, 
to  view  this  case  without  passion  and  without  prejudice  cre 
ated  by  the  section  in  which  you  live,  as  I  know  and  trust  by 
your  looks  and  indications  that  you  will.  And  I  say  to  you, 
gentlemen,  that  a  greater  stab  could  not  be  inflicted  on  our 
Government — not  a  greater  wound  could  be  given  to  the  cause 
in  which  we  all,  in  this  section  of  the  country,  are  enlisted — 
than  to  proclaim  the  doctrine  that  these  cases  are  to  be  treated 


108  TRIAL    OF    THE    OFFICERS    AND    CREW 

as  cases  for  the  halter,  instead  of  as  cases  of  prisoners  of  war 
between  civilized  people  and  nations.  The  very  course  of 
enlistment  of  troops  for  the  war  has  been  stopped  in  this  city 
by  that  threat.  As  1  said  before,  the  officers  and  soldiers  on 
the  banks  of  the  Potomac,  if  they  could  be  appealed  to  on  that 
question,  would  say,  "For  God's  sake,  leave  this  to  the  clash 
of  arms,  and  to  regular  and  legitimate  warfare,  and  do  not 
expose  us  to  the  double  hazard  of  meeting  death  on  the  field, 
or  meeting  an  ignominious  death  if  we  are  captured."  And 
as  history  has  recorded  what  I  have  called  your  attention  to 
as  having  occurred  in  the  days  of  the  Revolution,  so  history 
will  record  the  events  of  the  year  and  of  the  hour  in  which  we 
are  now  enacting  our  little  part  in  this  mighty  drama.  The 
history  of  this  day  will  be  preserved.  The  history  of  your  ver 
dict  will  be  preserved.  You  will  carry  the  remembrance  of 
your  verdict  when  you  go  to  your  homes.  It  will  come  to  you 
in  the  solemn  and  still  hours  of  the  night.  It  will  come  to 
you  clothed  in  all  the  solemn  importance  which  attaches  to  it, 
with  the  lives  of  twelve  men  hanging  upon  it,  with  the  honor 
of  your  country  at  stake,  with  events  which  no  one  can  fore 
see  to  spring  from  it.  And  I  have  only  to  reiterate  the  prayer, 
for  our  own  sake  and  for  the  sake  of  the  country,  that  God 
may  inspire  you  to  render  a  verdict  which  will  redound  to  the 
honor  of  the  country,  and  that  will  bring  repose  to  your  own 
consciences  when  you  think  of  it,  long  after  this  present  fitful 
fever  of  excitement  shall  have  passed  away.  . 


DOCUMENTARY     TESTIMONY. 
t 

Mr.  Brady,  for  the  defence,  put  in  evidence  the  following 
documents : 

1.  Preliminary  Chart  of  Part  of  the  sea-coast  of  Virginia, 
and  Entrance  to  Chesapeake  Bay. — Coast  Survey  Work,  dated 
1855. 

2.  The  Constitution  of  Virginia,  adopted  June  29, 1776.    It 
refers  only  to  the  western  and  northern  boundaries  of  Virginia 
—Art.  21— but  recognizes  the  Charter  of  1609.     That  charter 
(Hemmings'  Statutes,  1st  vol.,  p.  88)  gives  to  Virginia  jurisdic 
tion  over  all  havens  and  ports,  and  all  islands  lying  within  100 
miles  of  the  shores. 

3.  The  Act  to  Ratify  the  Compact  between  Maryland  and 
Virginia,  passed  January  3,  1786 — to  be  found  in  the  Revised 
Code  of  Virginia,  page  53.     It  makes  Chesapeake  Bay,  from 
the  capes,  entirely  in  Virginia. 

Mr.  Sullivan  also  put  in  evidence,  from  Putnam's  Rebellion 
Record,  the  following  documents : 


OF   THE    SCHOONER    SAVANNAH.  109 

1.  Proclamation  of  the  President  of  the  United  States,  of 
1 5th  April,  1861.     (See  Appendix.} 

2.  Proclamation  of  the  President,  of  19th  April,  1861,  de 
claring  a  blockade.     (See  Appendix.) 

3.  Proclamation  of  27th  April,  1861,  extending  the  blockade 
to  the  coasts  of  Virginia  and  North  Carolina. 

4.  Proclamation    of  May   3d,  for  an   additional    military 
force  of  42,034:  men,  and  the  increase  of  the  regular  army  and 
navy. 

5.  The  Secession  Ordinance  of  South  Carolina,  dated  Dec. 
20,  1860. 

Mr.  /Smith  stated  that,  in  regard  to  several  of  the  docu 
ments,  the  prosecution  objected  to  them, — not,  however,  as  to 
any  informality  of  proof.  He  supposed  that  the  argument  as 
to  their  relevancy  might  be  reserved  till  the  whole  body  of 
the  testimony  was  in. 

Judge  Nelson :  That  is  the  view  we  take  of  it. 

Mr.  Brady  suggested  that  the  defence  would  furnish,  to 
morrow,  a  list  of  the  documents  which  they  desired  to  put  in 
evidence. 

The  Court  then,  at  halt-past  4  P.  M.,  adjourned  to  Friday, 
at  11  A.M. 


THIPvD    DAY. 

* 

Friday,  (9^.25,1861. 

The  Court  met  at  11  o'clock  A.  M. 

Mr.  Brady  stated  to  the  Court  that  two  of  the  prisoners- 
Richard  Palmer  and  Alexander  Coid — were  exceedingly  ill, 
suffering  from  pulmonary  consumption,  and  requested  that 
they  might  be  permitted  to  leave  the  court-room  when  they 
wished.  It  was  not  necessary  that  they  should  be  present 
during  all  the  proceedings. 

Mr.  Smith:  It  would  be  proper  that  the  prisoners  make  the 
application. 

Mr.  Brady :  They  will  remain  in  Court  as  long  as  they 
can ;  and  will,  of  course,  be  present  when  the  Court  charges 
the  Jury. 


110  TRIAL    OF    THE    OFFICERS    AND    CREW 

The  Court  directed  the  Marshal  to  provide  a  room  for  the 
prisoners  to  retire  to,  when  they  desired. 

Mr.  Sullivan:  Before  adjourning  yesterday  it  was  stated 
that  the  different  ordinances  of  the  seceded  States  were  all  con 
sidered  in  evidence  without  being  read. 

Mr.  Smith  :  Are  any  of  them  later  in  date  than  the  com 
mission  to  the  Savannah  ? 

Mr.  Sullivan:  No,  sir.  Some  States  have  seceded  since 
the  date  of  the  commission,  and  have  been  received  into  the 
Confederacy. 

Mr.  Evarts:  We  will  assume,  until  the  contrary  appears, 
that  there  are  no  documents  of  date  later  than  the  supposed 
authorization  of  the  privateer. 

Mr.Larocque:  With  this  qualification,  —  that  there  are  a 
great  many  documents  from  our  own  Government  which  recog 
nize  a  state  of  facts  existing  anterior  to  those  documents. 

Mr.  Sullivan  i-ead  in  evidence  from  page  10  of  Putnam^ 
Rebellion  Record: 

Letter  from  Secretary  of  War,  John  B.  Floyd,  to  President 
James  Buchanan,  dated  December  29,  1860. 

President  Buchanan's  reply,  dated  December  31,  1860. 

Also,  from  page  11  of  Rebellion  Record: 
The  Correspondence  between  the  South  Carolina  Commis 
sioners  and  the  President  of  the  United  States. 
[Considered  as  read.] 

Also,  referred  to  page  19  of  Rebellion  Record*  for  the  Cor 
respondence  between  Major  Anderson  and  Governor  Pickens, 
with  reference  to  firing  on  the  Star  of  the  West. 

Read  Major  Anderson's  first  letter  (without  date),  copied 
•  from  Charleston  Courier,  of  Jan.  10,  1861.  (See  Appendix.) 

Governor  Pickens'  re  fly,  and  second  communication  from 
Major  Anderson.  (See  Appendix.) 

Also,  from  page  29  of  Rebellion  Record,  containing  the  sec 
tions  of  the  Constitution  of  the  Confederate  States  which  differ 
from  the  Constitution  of  the  United  States. 

Also,  from  page  31  of  Rebellion  Record  :  Inaugural  of  Jeffer 
son  Davis,  as  President  of  the  Confederate  States. 


O,  page  36  of  Rebellion  Record  :  Inaugural  of  Abraham 
Lincoln,  President  of  the  United  States,  (tor  the  passages, 
see  Appendix) 

Also,  page  61  of  Rebellion  Rec^d  :  The  President's  Speech 
to  the  Virginia  Commissioners.     (See-  Appendix.) 

Also,  page  71  of  Rebellion  Record  :  Proclamation  of  JefFer- 


OK    THE    SCHOONER    SAVANNAH.  Ill 

son  Davis,  with  reference  to  the  letters  of  marque,  dated  17th 
April,  1861. 

Also,  page  195  of  Rebellion  Record:  An  Act  recognizing  a 
state  of  war,  bv  the  Confederate  Congress, — published  May  6, 
1861. 

[Read  Section  5.] 

Mr.  Lord  read  from  pages  17,  19,  and  20,  of  Diary  of  Re 
bellion  Record,  to  give  the  date  of  certain  events : 

1861,  February  8.    The  Constitution  of  the  Confederate  States  adopted. 
u       18.    Jefferson  Davis  inaugurated  President. 

"       21.    The  President  of  the  Southern  Confederacy  nominates 
members  of  his  Cabinet. 

"       21.<    Congress  at  Montgomery  passed   an  Act  declaring  the 
establishment  of  free  navigation  of  the  Mississippi. 

March,  19.    Confederates  passed  an  Act  for  organizing  the  Confederate 
States. 

April  8.    South  Carolina  Convention  ratified   the  Constitution  of 
the  Confederate  States  by  a  vote  of  119  to  16. 

Mr.  Sullivan:  We  propose  now  to  introduce  the  papers 
found  on  board  the  Savannah  when  she  was  captured.  The 
history  of  these  papers  is,  that  they  were  captured  by  the 
United  States  officers,  taken  from  the  Savannah,  and  come  into 
our  hands  now,  in  Court,  through  the  hands  of  the  United  States 
District  Attorney,  in  whose  possession  they  have  been ; — and 
they  have  been  proceeded  upon  in  the  prize-court,  for  the  con 
demnation  of  the  Savannah.  The  first  I  read,  is — 

The  Commission  to  the  Savannah,  dated  18th  May,  1861. 

Also,  put  in  evidence,  copv  of  Act  recognizing  the  existence 
of  war  between  the  United  States  and  the  Confederate  States, 
and  concerning  letters  of  marque, — approved  May  6,  1861. 

Also,  read  President  Davis1  Instructions  to  Private  Armed 
Vessels, — appended  to  the  Act. 

Also,  an  Act  regulating  the  sale  of  prizes,  dated  May  6, 
1861, — approved  May  14,  1861. 

Also,  an  Act  relative  to  prisoners  of  war,  dated  May  21, 1861. 

Mr.  Sullivan  also  read  in  evidence  three  extracts  from  the 
Message  of  President  Lincoln  to  Congress,  at  Special  Session  of 
July  4,  1861.  (See  Appendix.) 

Also,  extracts  from  the  Message  of  President  Buchanan,  at 
the  opening  of  regular  Session  of  Congress,  December  3d,  1860. 
(See  Appendix.} 


112  TRIAL    OF   THE    OFFICERS   ANL>    CREW 

Also,  from  page  245  of  Rebellion  Record :  Proclamation  of 
the  Queen  of  Great  Britain,  dated  May  13,  1861. 

Mr.Evarts  objected  to  this,  on  the  ground  that  it  could  not 
have  been  received  here  prior  to  the  date  of  the  commission. 

Objection  overruled. 

Also,  from  page  170  of  Rebellion  Record  :  Proclamation 
of  the  Emperor  of  France, — published  June  11,  1861. 

Also,  the  Articles  of  Capitulation  cf  the  Forts  at  the  Hat- 
teras  Inlet,  dated  August  29th,  on  board  the  United  States  flag 
ship  Minnesota,  oif  Hatteras  Inlet. 

Mr.  Evarts  remarked  that  this  latter  document  was  not 
within  any  propositions  hitherto  passed  upon  ;  but  he  did  not 
desire  to  arrest  the  matter  by  any  discussion,  if  their  honors 
thought  it  should  be  received. 

Judge  Nelson :  It  may  be  received  provisionally. 

Mr.  Brady  also  put  in  evidence  the  Charleston  Daily 
Courier,  of  llth  June,  1861,  containing  a  Judicial  Adver 
tisement, — a  monition  on  the  filing  of  a  libel  in  the  Admiralty 
Court  of  the  Confederate  States  of  America,  for  the  South  Caro 
lina  District,  and  an  advertisement  of  the  sale  of  the  Joseph, 
she  having  been  captured  on  the  high  seas  by  the  armed 
schooner  Savannah,  under  the  command  of  T.  Harrison  Baker, 
— attested  in  the  name  of  Judge  Magrath,  6th  June,  1861. 

And  containing,  also,  a  judicial  Act,  relating  to  the  adminis 
tration  of  an  estate  in  due  course  cf  law. 

Mr.  Brady  stated  that  the  reference  was  to  show  that  they 
had  a  judicial  system  established  under  their  own  Govern 
ment. 

Lieutenant  D.  D.  Tompkins  recalled  for  the  defence,  and 
examined  by  Mr.  Sullivan. 

Q.  State  your  knowledge  as  to  the  sending  of  any  flags  of 
truce  while  your  vessel,  the  Harriet  Lane,  was  lying  at  Fortress 
Monroe? 

(Same  objection  ;  received  provisionally.) 

A.  I  have  seen  flags  of  truce  come  clown  from  the  direction 
of  Norfolk. 

Q.  Did  your  vessel  have  any  communication  with  the 
officer  bearing  the  flag  of  truce  ?  A.  No,  sir. 

Q.  Did  they  come  with  the  Confederate  flag  flying  on  the 
same  vessel  with  the  flag  of  truce  ? 

A.  Yes.  One  vessel  came  down  with  the  Confederate  flag 
flying,  and  a  flag  of  truce,  also. 

Q.  Where  was  it  received,  and  by  what  officer  ? 


OF  THE   SCHOONER   SAVANNAH.  113 

A.  I  am  not  positive  whether  it  was  received  by  the  Cum 
berland  or  the  Minnesota.  They  communicated  with  either  of 
those  vessels. 

Q.  Were  any  vessels  or  boats,  with  flags  of  truce,  ever  sent 
from  Fort  Monroe  toward  the  Confederate,  forces? 

A.  I  have  seen  vessels  go  up  the  Roads  with  a  flag  of 
truce. 

Q.  And  the  United  States  flag  on  the  same  vessels  ? 

A.  Yes. 

Q.  you  saw  Captain  Baker  and  the  other  prisoners — were 
they  uniformed? 

A.  No,  sir;  I  do  not  think  they  had  any  regular  uniform. 
Captain  Baker  had  a  uniform,  with  metal  buttons  on  his  coat. 
I  did  not  notice  what  was  on  rhe  buttons. 

Q.  He  had  on  such  a  dress  as  he  wears  to  day? 

A.  Something  similar  to  that.  He  was  the  only  one  who 
had  a  uniform. 

Q.  Do  you  know  anything  as  to  the  exchange  of  prisoners 
between  the  forces  of  the  United  States  and  of  the  Confederate 
States  on  any  station  where  you  have  been  ?  A.  ]So,  sir. 

The  defence  here  closed. 

The  District  Attorney  stated  that  the  prosecution  had  no 
rebutting  evidence  to  offer. 

Jadge  Nelson :  Before  counsel  commence  summing  up  the 
case  to  the  Jlny,  they  will  please  present  the  propositions  of 
law  on  both  sides. 

Mr.  Lord:  I  was  going  to  ask  my  friends  on  the  other  side 
to  give  us  their  authorities,  so  that  we  shall  know  what  we  are 
to  go  to  the  Jury  upon.  We  would  then  be  able  to  lay  our 
views  before  the  Court  and  to  divide  the  labor  of  summing  up 
— some  of  us  addressing  ourselves  entirely  to  the  Court. 

Mr.  Evarts :  I  would  have  no  objection  to  taking  that 
course  if  I  had  been  prepared  for  it.  In  the  presentation  of 
the  case,  we  rely  on  the  statute  of  the  United  States — on  the 
fact  that  the  defendants  are  within  the  terms  of  the  statute  ;  and 
that  the  affirmative  defence,  growing  out  of  the  state  of  things 
in  this  country,  does  not  apply  in  a  Court  of  the  United  States, 
and  under  a  statute  of  the  United  States,  which  still  covers  the 
condition  of  the  persons  brought  in.  Whether  they  are  citizens 
or  aliens,  nothing  has  been  shown  which  takes  them  out  of  the 
general  operation  of  our  laws.  On  the  question  of  the  ingre 
dients  of  the  crime  of  piracy — which  is  a  particular  inquiry, 
irrespective  of  the  considerations  connected  with  the  state  of 
8 


114  TRIAL   OF   THE   OFFICERS   AND   CREW 

war — I  do  not  know  that  we  need  refer  to  anything  which  is 
not  quite  familiar.  The  cases  referred  to  by  the  learned  coun 
sel  for  the  prisoners — the  United  States  vs.  Jones,  the  United 
States  vs.  Palmer,  and  the  United  States  vs.  Tully — contain  all 
the  views  in  reference  to  the  ingredients  of  the  crime  of  piracy, 
or  to  the  construction  of  the  statutes,  that  we  need  to  pre 
sent.  In  the  general  elementary  books  to  which  the  learned 
counsel  have  referred — the  various  books  on  the  Pleas  of  the 
Crown — there  are  passages  to  which  we  shall  have  occasion  to 
refer. 

Judge  Nelson:  The  counsel  for  the  Government  should  give 
to  the  counsel  on  the  other  side,  bt-fore  the  summing  up  is  com 
menced,  all  the  authorities  on  which  they  intend  to  rely. 

Mr.  Evarts :  That  we  shall  do,  of  course. 
Judge  Nelson:  We  will  take  them  now. 

Mr.  Evarts :  I  refer  to  1st  East's  Pleas  of  the  Crown,  70-1. 

It  is  under  the  title  of  Treason,  but  it  is  on  the  point  of  the 
character  of  the  crime  as  qualified  by  the   influence  on  the 
party,  of  force,  or  of  the  state  of  the  population  by  which  the 
accused  was  surrounded.     I  read  from  page  TO  : 

"Joining  with  rebels  freely  and  voluntarily  in  any  act  of  rebellion  is  levy 
ing  war  against  the  King;  and  this,  too,  though  the  party  was  not  privy  to 
their  intent.  This  was  holden  in  the  case  of  the  Earl  of  Southampton,  and 
again  in  Purchase's  case,  in  1710.  JJutyet  it  seems  necessary,  in  this  case, 
either  that  the  party  joining  with  rebels,  and  ignorant  of  their  intent  at  the 
time,  should  do  some  deliberate  act  towards  the  execution  of  their  design,  or 
else  should  be  found  to  have  aided  and  assisted  those  who  did.  *  *  But 
if  the  joining  with  rebels  be  from  fear  of  present  death,  and  while  the 
party  is  under  actual  force,  such  fear  and  compulsion  will  excuse  him.  It  is 
incumbent,  however,  on  the  party  setting  up  this  defence,  to  give  satisfactory 
proof  that  the  compulsion  continued  during  all  the  time  that  he  stayed  with 
the  rebels." 

The  case  of  Axtell,  one  of  the  regicides,  is  referred  to.  The 
defense  was  set  up  for  him  that  he  acted  by  command  of  his 
superior  officer ;  but  that  was  ruled  to  be  no  defence.  I  now 
read  from  page  104  : 

"  One  species  of  treason,  namely,  that  of  committing  hostilities  at  sea, 
under  color  of  a  foreign  commission,  or  any  other  species  of  adherence  to  the 
King's  enemies  there,  may  be  indicted  and  tried  as  piracy,  by  virtue  of  the 
statutes." 

That  is,  that  although  being  guilty  of  treason,  in  its  general 
character  of  adhering  to  the  enemy,  yet  it  also  falls  within  the 
description  of  piracy,  and  may  be  proceeded  against  as  such. 
On  the  question  of  the  element  of  force  or  intimidation  as 


OF  THE   SCHOONER   SAVANNAH.  115 

entering  into  the  crime  of  robbery,  I  refer  to  1st  Hawkins'  Pleas 
of  the  Crown,  page  235  : 

"Wherever  a  person  assaults  another  with  such  circumstances  of  terror 
as  put  him  into  fear,  and  cause  him,  by  reason  of  such  fear,  to  part  with  his 
money,  the  taking  thereof  is  adjudged  robbery,  whether  there  were  any  wea 
pon  drawn,  or  not,  or  whether  the  person  assaulted  delivered  his  money  upon 
the  other's  command,  or  afterwards  gave  it  him  upon  his  ceasing  to  use  force, 
and  begging  an  alms ;  for  he  was  put  into  fear  by  his  assault,  and  gives  him 
his  money  to  get  rid  of  him. 

"  But  it  is  not  necessary  that  the  fact  of  actual  fear  should  either  be  laid 
in  the  indictment  or  be  proved  upon  the  trial ;  it  is  sufficient  if  the  offence 
be  charged  to  be  done  tiolenter  et  contra  voluntatem.  And  if  it  appear 
upon  the  evidence  to  have  been  attended  with  those  circumstances  of  violence 
or  terror  which  in  common  experience  are  likely  to  induce  a  man  to  part 
with  his  property  against  his  consent,  either  for  the  safety  of  his  person 
or  for  the  preservation  of  his  character  and  good  name,  it  will  amount  to  a 
robbery." 

I  refer  to  Hale's  Pleas  of  the  Crown,  vol.  I.,  p.  68,  on  the 
question  of  double  or  doubtful  allegiance  : 

"  Though  there  may  be  due  from  the  same  person  subordinate  allegiances, 
which,  though  they  are  not  without  an  exception  of  the  fidelity  due  to  the  su 
perior  Prince,  yet  are  in  their  kind  sacramenta  ligea  Jidelitatis,  or  subordinate 
allegiances,  yet  there  can  not,  or  at  least  should  not,  be  two  or  more  co-ordi 
nate  allegiances  by  one  person  to  several  independent  or  absolute  Princes;  for 
that  lawful  Prince  that  hath  the  prior  obligation  of  allegiance  from  his  sub 
ject  can  not  lose  that  interest  without  his  own  consent,  by  his  subject's  resign 
ing  himself  to  the  subjection  of  another." 

I  refer  to  the  case  of  the  United  States  against  Tully,  1st 
Gallison's  Reports,  p.  253-5,  to  show  that  the  statute  does  not, 
in  terms,  require  that  there  shall  be  any  personal  violence  or 
putting  in  fear  to  constitute  robbery,  provided  the  offence  is 
committed  animo  furandi. 

1  also  refer  to  the  case  of  the  United  States  vs.  Jones,  3 
Washington  C.  C.  R.,  p.  219,  on  the  point  of  the  justification 

S'ven  by  a  commission  ;  to  the  case  of  United  States  vs. 
ayward,  2  Gallison,  501 ;  to  the  observations  of  Chancellor 
Kent,  vol.  L,  p.  '200,  marginal  page  191  ;  to  the  United  States 
vs.  Palmer,  3  Wheaton,  p.  634,  as  to  the  manner  in  which  our 
Courts  deal  with  international  questions  respecting  the  recogni 
tion  of  nationalities ;  to  the  case  of  the  Santissima  Trinidad, 
Kent's  Commentaries,  vol.  L,  p.  27,  marginal  page  25  ;  to  the 
case  of  Rose  vs.  Hinely,  4  Cranch,  241.  I  refer  to  the  latter 
case  for  the  general  doctrines  therein  contained  on  the  propo 
sition  that  although  a  parent  or  original  Government  may  find 
the  magnitude  and  power  of  the  rebellion  such  as  to  induce  or 
compel  it  to  resort  to  warlike  means  of  suppression,  so  as  that 
toward  neutral  nations  there  will  grow  up  such  a  state  of 
authority  as  will  compel  the  recognition  by  neutral  nations  of 
the  rights  of  war  and  belligerents,  that  is  not  inconsistent  with 


116  TRIAL    OF   THE   OFFICERS    AND   CREW 

or  in  derogation  of  the  general  proposition  that  the  parent  Gov 
ernment  still  maintains  the  sovereignty,  and  can  enforce  its 
municipal  laws,  by  all  those  sanctions,  against  its  rebellious 
subjects.  In  other  words,  that  the  flagrancy  of  civil  war, 
which  gives  rise  to  the  aspect  and  draws  after  it  the  conse 
quences  oi  war,  does  not  destroy  either  the  duty  of  allegiance 
or  the  power  of  punishing  any  infraction  of  law  which  the 
rebels  may  be  guilty  of,  either  in  reference  to  the  principal 
crime  of  treason,  or  in  reference  to  any  other  violation  of  mu 
nicipal  rights. 

I  also  ask  your  honors'  attention  to  a  recent  chnrge  of 
Judge  Sprague,  to  the  Grand  Jury  in  the  Massachusetts  Dis 
trict,  in  reference  to  the  crime  of  piracy. 

On  the  question  of  jurisdiction,  I  refer  to  the  case  of  the 
United  States  vs.  Hicks,  decided  in  this  Court. 

I  refer  to  the  case  of  the  Mariana  Flora,  to  show  that  the 
arrest  of  a  pirate  at  sea  arises  under  a  general  principle  of  the 
law  of  nations,  wrhich  authorizes  either  a  public  or  a  private  ves 
sel  to  make  the  arrest.  It  is  analogous  to  the  common-law  arrest 
of  a  felon.  The  point  in  the  case  of  the  Mariana  Flora  is,  that 
any  public  or  private  vessel  has  a  right  to  arrest  a  piratical 
vessel  at  sea  and  bring  it  in.  It  differs  in  that  respect  from  the 
authority  to  arrest  a  slaver. 

On  the  general  question  of  the  ingredients  of  robbery,  I 
refer  to  Archbold's  Criminal  Practice  and  Pleadings,  2  vol.,  p. 
507,  marginal  pages  417,  510,  526. 

In  political  connections  I  shall  have  occasion  to  refer  to  the 
Constitution  of  the  United  States  and  to  the  Articles  of  the 
Confederation,  to  the  Virginia  and  Kentucky  resolutions,  and 
the  answers  of  the  other  States  of  the  Union,  which  will  be 
found  collected  in  Ellett's  Debates,  vol.  4,  pages  528  to  545. 

I  may  refer  also  to  Mr.  Pinckney's  speech  in  the  Conven 
tion  of  South  Carolina  which  adopted  the  Constitution,  same 
volume,  p.  331 ;  to  the  formal  ratifications  of  the  Constitution 
by  the  different  States  of  the  Union,  same  volume,  p.  318  ;  and 
I  may  have  occasion  to  refer  to  Grotius  in  connection  with  the 
discussion  of  the  general  state  of  war.  The  citations  will  be — 
book  1st,  chap.  1,  sees.  1  and  2 ;  chap.  3,  sees.  1  and  4;  and 
chap.  4,  sec.  1. 


OF   THE    SCHOONER   SAVANNAH.  117 


MR.  LORD'S  ARGUMENT. 


Mr.  Lord,  of  counsel  for  the  defence,  said  : 

May  it  please  your  honors, — The  distribution  of  duties 
which  counsel  for  the  defence  have  made  among  them 
selves  is,  that  I  shall  briefly  present  the  propositions  of  law, 
somewhat  irrespective  of  the  wide  political  range  which  my 
friends  seem  to  think  is  to  be  involved.  I  shall  not  pur 
sue  even  the  field  which  Mr.  Larocque  has  opened,  knowing 
that  he  has  cultivated  it  to  a  far  greater  degree  than  I  have, 
and  therefore  I  will  leave  it  to  him  to  till.  My  friend,  Mr. 
Brady,  will  address  the  Jury  on  any  questions  of  fact  that 
may  be  supposed  to  be  involved. 

Before  I  enter  upon  the  discussion,  and  with  the  view  that 
this  case  may  be  relieved  from  one  prejudice  which  probably 
every  man  has  felt  on  first  hearing  of  it,  I  beg  leave  to  set  our 
selves  all  right  on  the  idea  that  there  is  something  different  in 
a  private  armed  ship  from  a  public  armed  vessel,  in  the  law, 
and  in  the  view  of  the  people  of  the  country.  I  desire  to  read 
on  that  subject  a  letter  from  Mr.  Marcy  to  the  Count  de  Sar- 
tiges. 

J//1.  Lord  read  the  letter,  and  continued : 

Therefore  in  this  discussion,  so  far  from  a  private  armed 
vessel  being  regarded  with  disfavor,  it  is  regarded,  and  has  to 
be  regarded,  with  all  the  favor  which  would  belong  to  it  as  a 
regularly  commissioned  cruiser,  belonging  to  the  State,  and  not 
to  the  individual. 

I  now  approach,  with  all  the  brevity  due  to  your  valuable 
time,  the  question  of  jurisdiction.  It  seems  to  me  to  be  very 
clear  indeed  that  after  Ilarleston  and  the  crew,  of  the  Savannah 
were  taken  by  the  Perry,  he  was  confined  as  a  prisoner,  as  one 
of  a  crew  of  a  piratical  vessel,  for  an  act  charged  as  piratical, 
on  board  the  United  States  ship-of-war  Minnesota,  by  order  of 
its  commander.  That  Harleston  was  taken  by  the  said  com 
mander  into  the  District  of  Virginia,  within  a  marine  league 
of  its  shore?,  where  the  said  ship  remained ;  and  the  said 
Harleston  and  the  other  prisoners  could  have  been  there* 
landed  and  detained  for  trial.  If  the  facts  are  so,  the  Circuit 
Court  of  this  District  has  no  jurisdiction,  and  the  prisoners 
should  be  acquitted. 

The  evidence  of  our  friend,  Commodore  Stringham,  on  that 
subject,  leaves  us  no  doubt  as  to  the  character  of  the  arrest. 
After  seeing  the  Perry  close  in  to  Charleston,  she  having  been 


118  TRIAL    OF   THE    OFFICERS    AND    CREW 

ordered  by  him  to  crui?e  further  off,  and  he,  wondering  what 
she  was  doing  there — he  says  : 

"She  hailed  us  and  informed  us  she  had  captured  a  piratical  vessel.  The 
vessel  was  half  a  mile  astern.  Captain  Parrot,  of  the  Perry,  came  and  made 
to  me  a  report  of  what  had  taken  place.  I  ordered  him  to  send  the  prisoners 
on  board,  and  I  sent  a  few  men  on  board  the  Savannah  to  take  charge  of  her 
during  the  night.  The  vessels  were  then  anchored.  Next  morning  I  made 
arrangements  to  put  a  prize  crew  on  board  the  Savannah  and  send  her  to 
New  York,  and  I  directed  the  Captain  of  the  Joseph  to  take  passage  in  her. 
I  took  the  prisoners  from  the  Perry,  and  directed  the  Perry  to  proceed,"  &c. 

Again  he  testifies : 

"  Q.  What  was  your  object  in  transferring  the  prisoners  from  the  Perry 
to  the  Minnesota? 

"A.  Sending  them  to  a  Northern  port.  The  port  of  New  York  was  the 
port  I  had  in  my  mind  to  send  them  to,  in  the  first  ship  from  the  station." 

The  prisoners,  thus  taken  from  a  piratical  vessel,  he  determ 
ined  to  carry  to  Norfolk,  and  to  send  them  thence  to  the 
North  for  trial. 

Now,  if  your  honors  please,  my  learned  friend  (Mr.  Evarts) 
seems  to  say  that  there  is  no  authority  in  law  for  a  United 
States  vessel  to  arrest  pirates  at  sea ;  but  if  you  will  read  the 
President's  proclamation  of  19th  June  you  will  find  that  he 
speaks  of  dealing  with  the  persons  who  may  be  taken  on  board 
private  armed  ships  as  pirates.  I  will  then  ask  to  direct  your 
attention  to  the  Act  of  1819  (3d  Yol.  Statutes,  p.  510),  where 
the  President  is  authorized  to  employ  public  armed  vessels  to 
arrest  offenders  against  that  law.  Therefore  the  capture  of  the 
prize  was  not  only  a  part  of  the  general  law  of  nations,  but  it 
was  particularly  a  thing  which  the  commanders  of  ships  of  the 
United  States  were  charged  by  the  proclamation  of  the  Presi 
dent,  and  by  Act  of  Congress,  to  do. 

I  now  approach  the  other  question,  as  to  where  these  pris 
oners  were  apprehended,  or  into  what  District  they  were  first 
brought.  That  they  were  apprehended  by  a  warrant  from  the 
United  States  Commissioner  in  New  York,  is  not  in  dispute. 
The  question,  however,  is,  where  they  were  first  brought.  If 
an  ofhcer  having  them  in  charge  could  anchor  his  vessel  at 
Baltimore,  and  then  at  Philadelphia,  and  then  bring  his  pris 
oners  to  New  York,  it  would  be  putting  the  law  entirely  in  his 
hands  and  dissipating  all  its  force.  In  ordinary  cases  of  crime 
the  jurisdiction  is  local;  and  that  for  many  reasons.  One  is, 
that  a  man  is  to  be  tried  by  his  peers — meaning  those  of  his 
own  neighborhood,' — and  that  it  is  easier  to  procure  evidence 
at  the  place  where  the  crime  is  committed.  The  law  does  not 
give  to  any  man  the  power  of  assigning  the  place  of  trial.  In 
the  case  of  offences  committed  on  the  high  seas,  the  law  de- 


OF    THE    SCHOONER   SAVANNAH.  119 

clares  that  the  accused  shall  be  tried  in  the  District  into  which 
he  is  first  brought. 

Now,  that  these  men  were  held  by  Capt.  Stringham  for  the 
purpose  of  being  tried  as  pirates,  the  evidence  is  clear.  They 
were  transferred  from  the  Perry  to  the  Minnesota,  taken  to  the 
Norfolk  station,  and  there  kept  in  irons  on  board  the  Minne 
sota  till  they  were  transferred  to  the  Harriet  Lane.  Could 
they  have  been  detained  there  for  trial?  It  might  be  an  incon 
venience  if  there  was  no  Court.  Ihey  might  have  had  to  be 
detained  for  a  long  time,  or  Congress  might  pass  some  law 
varying  the  jurisdiction.  But  as  the  law  stood,  if  these  men 
could  have  been  landed  and  detained  for  trial,  then  that  was 
the  District  in  which  they  were  necessarily  to  be  tried.  Can 
any  one  say  that  it  was  not  as  easy  to  have  landed  these  men 
at  Fortress  Monroe,  or  at  Hampton,  as  to  transfer  them  to  the 
Harriet  Lane  ?  And  could  they  not  have  been  detained  there  ? 
You  did  not  need  a  Court  to  detain  them.  They  were  taken  by 
force,  and  might  have  been  detained  in  the  fortress  till  a  trial 
should  be  had.  There  was  no  difficulty  in  their  being  landed 
in  Virginia;  and,  moreover,  there  were  in  Western  Virginia 
loyal  Courts,  where  they  could  be  tried. 

Now,  what  is  there  that  takes  away  the  jurisdiction  which 
belongs  to  that  part  of  the  country  and  not  to  this?  "  Why," 
says  Captain  Stringham,  u  I  wanted  to  send  them  to  New  York.'1 
But  had  he  any  right  to  do  so,  when  he  had  actually  br  .light 
them  to  that  station  where  his  ship  belonged,  and  where  he 
was  bound  to  keep  her  unless  he  returned  her  to  the  cruising 
ground  ?  Remember  that  his  ship  remained  there  some  time 
before  the  transfer  was  made.  They  were  detained  as  prison 
ers  there,  and  might  as  well  have  been  detained  en  shore. 
Therefore,  it  seems  to  me,  that  unless  the  capturing  officer,  and 
not  Congress,  has  the  right  to  determine  the  place  where  the 
trial  shall  be  had,  these  men  were  to  be  tried  in  the  District 
of  Virginia. 

Now,  it  is  no  answer  to  this  to  say  that,  where  a  vessel  is 
sailing  along  ihe  shores  of  a  District,  a  prisoner  on  board  is  not 
brought  there  in  the  proper  sense  of  the  word.  The  ship  is 
not  bound  to  stop  and  break  up  her  voyage  in  order  to  have 
the  Court  designated  where  he  is  to  be  tried  ;  but  where  the 
ship  comes  into  port — where  she  stops  at  a  port — I  submit  to 
your  honors  that  this  is  the  bringing  contemplated  by  the 
statute. 

1  now  approach,  if  your  honors  please,  the  merits  of  this 
case.  The  indictment  is  founded  on  two  sections  of  the  Crimes 
Act,  originally  two  separate  and  very  distinct  statutes.  It  is 
the  eighth  section  which  makes  robbery  on  the  high  seas  pi 
racy.  That  embraces  the  first  five  counts  of  the  indictment, 
which  are  varied  in  mere  circumstances.  The  remaining 


120  TKIAL   OF   THE   OFFICERS   AND   CKEW 

counts  rest  on  the  transcript  into  the  legislation  of  this  coun 
try,  from  the  Act  of  11  and  12  William  III.,  to  the  effect,  sub 
stantially,  that  if  any  citizen  of  the  United  States  shall,  under 
color  of  a  commission  from  any  foreign  Prince  or  State,  or 
under  pretence  of  authority  from  any  other  person,  commit 
acts  of  hostility  against  the  United  States,  or  the  citizens 
thereof,  that  shall  be  piracy.  In  the  argument  which  I  shall 
address  to  your  honors  I  will  beg  leave  to  characterize  the  lirst 
as  piracy  by  the  laws  of  nations,  and  the  second  as  statutory 
piracy.  But,  before  I  discuss  that  subject,  permit  me  to 
say  that,  as  to  eight  of  these  prisoners,  it  is  conceded  that 
they  do  not  come  under  that  section,  as  the  evidence  for  the 
prosecution  shows  that  they  were  not  citizens  of  the  United 
States.  So  that,  as  to  these  eight,  unless  they  are  adjudged 
pirates  under  the  eighth  section,  they  must  be  acquitted,  if 
they  can  justify  themselves  under  the  c  >mrnission. 

Judge  Nelson  :  Then  the  other  four,  you  say,  can  only  be 
convicted  under  the  ninth  section  ? 

Mr.  Lord:  Yes  ;  that  is  the  statutory  process,  if  I  may  be 
permitted  to  give  it  that  name. 

The  act  is  charged  as  an  act  of  robbery,  not  as  an  act  of 
treason.  It  is  not  alleged  to  have  been  done  treasonably.  If 
the  prosecution  wanted  to  give  it  that  character,  they  must 
have  alleged  it  to  be  treason.  They  must  have  alleged  that 
this  act,  done  on  the  high  seas,  was  done  treasonably,  traitor 
ously,  and  therefore  piratically.  They  have  alleged  no  such 
thing.  I  take  pleasure  in  saying  that  the  District  Attorney, 
in  opening  this  case,  did  it  with  great  fairness,  and  disavowed 
any  idea  of  introducing  treason  into  the  case.  There  are  many 
reasons  why,  if  that  were  pretended,  this  whole  trial  should 
stop.  The  requisites  of  a  prosecution  for  treason  have  not 
been,  in  any  degree,  complied  with.  The  charge  is  robbery. 
It  may  be  charged  as  done  piratically,  involving  animus  fu- 
randi.  L  -t  us  see,  for  an  instant,  what  piratical  is.  Piracy 
is,  by  all  definitions,  a  crime  against  all  nations.  It  enters  into 
every  description  of  a  pirate  that  he  is  hostis  humani  generis. 
That  is  the  common-law  idea  of  piracy.  It  is  not  a  political 
heresy  that  wTill  make  piracy.  It  is  not  a  political  conformity 
that  will  always  exempt  from  the  charge  of  piracy.  For  in 
stance,  if  the  officer  of  a  Government  vessel,  with  the  most  full 
and  complete  commission,  such  as  my  friend  Commodore 
Stringham  had,  should  invade  a  ship  at  sea,  and  should,  under 
pretence  of  capture,  take  jewels  and  secrete  them,  not  bring 
ing  them  in  for  adjudication,  he  would  be  a  pirate,  because, 
though  he  he  d  a  commission,  he  did  the  act  animo  furandi, 
— did  it  out  of  the  jurisdiction  of  any  particular  country, — did 
it  against  the  great  principles  of  civilization  and  humanity. 

Again,  if  a  commissioned  vessel  hails  a  private  ship,  and, 


OF  THE   SCHOONER   SAVANNAH.  121 

on  the  idea  that  she  is  a  subject  of  prize,  captures  her,  and  it 
turns  out  that  that  capture  is  illegal  and  unwarranted,  that 
fact  does  not  make  the  act  piracy.  Although  the  act  might  be 
ever  so  irregular — although  it  might  subject  the  officer  to  the 
severest  damages  for  trespass — yet  it  is  not  piratical,  and  the 
officer  is  not  to  be  hung  at  the  yard-arm  because  he  mistakes  a 
question  of  law.  Your  honors  therefore  see  how  utterly  it 
enters  into  the  whole  subject  that  the  thing  shall  be  done 
anirno  furandi,  piratically,  as  against  the  general  law  of  na 
tion*  and  the  sense  of  right  of  the  civilized  world. 

"Well,  now,  we  are  at  once  struck  with  this  consideration  : 
Suppose  the  act  is  regarded  as  not  piratical  by  millions  of 
people  having  civilized  institutions,  having  Courts  of  Justice, 
giving  every  opportunity  for  a  trial  of  the  question  of  forfeit 
ure  or  no  forfeiture — why,  it  shocks  the  moral  sense  to  say  that 
that  is  done  animofurandi,  that  it  is  a  theft  and  a  robbery,  and 
that  the  man  who  does  it  is  an  enemy  to  the  human  race. 
Carry  the  idea  a  little  further,  and  you  find  that  the  commis 
sion  under  which  a  man  acts  in  seizing  a  vessel  with  a  view  of 
bringing  it  in  as  a  prize  is  regarded  by  all  the  great  commer 
cial  nations  of  the  world  as  regular,  and  that  the  act  is  regarded 
not  as  a  piratical,  but  as  a  belligerent  act.  Does  it  not  shock 
the  very  elements  of  justice  to  have  it  supposed  that  in  such  a 
case  the  man  acting  under  the  commission,  and  within  its 
powers,  is  to  be  deemed  an  enemy  of  the  \vhole  human  race, 
while  all  the  human  race,  except  the  power  which  seeks  to 
subject  him  to  punishment,  says  the  act  is  not  piratical  ? 

Now,  upon  this  subject  my  learned  friends  have  cited  many 
authorities,  which  all  bear  on  the  effect  of  what  should  give 
validity  to  the  transfer  of  captured  property  under  the  circum 
stances  of  rebellions  in  States.  Now  I  beg  leave,  at  the  outset 
of  the  consideration  of  this  case,  to  say  that  the  question  of 
passing  title  to  property  is  a  thing  entirely  different  from  the 
question  of  hanging  a  man  for  committing  a  crime.  In  the 
first  place,  look  at  the  numerous  acts  of  trespass  which  are  com 
mitted  on  the  high  seas  by  vessels  of  every  nation.  The  books 
are  full  of  cases  of  marine  trespass,  and  of  damages  against 
captors  for  their  irregularities  ;  but  are  the  authorities  which 
bear  upon  that  subject,  which  is  a  mere  question  of  prop 
erty — a  question  of  title — of  the  mere  transfer  of  title — are 
they  authorities  which  decide  the  question  that  a  man  should 
be  hanged  if  he  mistakes  the  law,  <.»r  if  he  acts  under  the 
impulse  of  a  wrong  judgment  as  to  the  sovereign  which  he 
should  serve?  I  would  call  your  attention  to  the  case  of  Klin- 
tock,  reported  in  the  5th  of  Wheaton,  where  the  Court  say  that 
they  will  not  regard  the  commission  of  General  Aubrey  as 
sufficient  to  give  title  to  the  property,  "  although  it  might  be 
sufficient  to  defend  him  from  a  charge  of  piracy."  I  also  refer 


122  TRIAL   OF   THE   OFFICERS   AND   CREW 

to  Phillimore  on  International  Law,  vol.  3,  p.  319.     [Counsel 
read  from  the  authority.] 

Now,  under  what  circumstances  was  this  done?  And  in 
the  discussion  I  give  to  this  question  I  am  entirely  free  from 
the  necessity  of  considering  how  the  Government  of  this  coun 
try  shall  regard  the  seceded  States, — as  having  a  Government, 
or  not.  I  am  under  the  law  of  nations,  because  this  act  which 
I  am  now  discussing,  of  robbery  on  the  high  seas,  was  evi 
dently  a  transcript  of  the  law  of  nations  upon  the  subject  of 
piracy.  What  are  the  undeniable  facts? — the  facts  about 
which,  in  this  case,  there  is  not  any  dispute,  either  in  this 
country  or  in  the  whole  world — about  which  there  is  but  one 
opinion — what  are  they  ?  At  the  time  the  crew  of  the  Savan 
nah  shipped  for  this  cruise,  and  at  the  time  of  the  capture  of 
the  Joseph,  the  authorities  of  the  State  of  South  Carolina  (for 
the  State  of  South  Carolina  had  an  organization  from  its  be 
ginning,  as  a  part  of  this  country,  and,  as  a  government,  was 
well  known  to  the  Government  of  the  United  States) — the  au 
thorities  of  the  State  of  South  Carolina,  where  the  Savannah 
was  fitted  out  and  the  crew  resided,  had  become  parties  to  a 
confederation  of  others  of  the  United  States.  Now  it  is  im 
material  to  me,  in  the  liaht  in  which  I  view  this  case,  whether 
that  was  politically  right  or  not — whether  it  was  legally  right 
or  not — whether  this  country  could  look  at  it  as  a  source  of 
title  to  property  or  not ;  the  fact  is  there,  that  a  State — one  of 
the  original,  recognized -States  of  the  Union — united  itself,  un 
der  an  assumption  of  authority,  revolutionary  if  you  please, 
with  other  similar  States,  and  formed  a  league  and  a  Govern 
ment.  That  fact  is  undoubtedly  so.  Under  such  confedera 
tion  a  Government,  in  fact,  existed,  and  exercised,  in  fact,  the 
powers  of  civil  and  military  Government  over  the  territories 
and  peoples  of  those  States,  or  a  principal  part  of  them.  Here 
we  have  eleven  recognized  States,  doing,  if  you  please,  an 
illegal  thing,  when  you  come  to  submit  it  to  the  just  principles 
of  law.  They  form  a  league, — against  an  Act  of  Congress, — 
but  they  do  form  a  league,  arid  do  constitute  a  Government ; 
and  this  Government  takts  possession  of  a  territory  of  some  ten 
millions  of  people,  all  of  whom  submit  to  it.  It  maintains  the 
Government  in  its  domestic  character  of  States,  and  originates 
a  Government  for  its  foreign  relations.  It  assumes  to  make 
war,  and  declares  war.  The  President's  proclamation  says 
that  the  said  Confederated  States  had  in  fact  declared  war 
against  the  United  States  of  America,  and  were  openly  prose 
cuting  the  same  with  large  military  forces,  under  the  military 
and  civil  organization  of  a  Government  ;  and  had  assumed, 
and  were  in  the  exercise  of,  the  power  of  issuing  commissions 
to  private  armed  ships  to  make  captures  of  the  property  of 
the  United  States,  and  the  citizens  thereof,  as  prize  of  war,  and 


OF  THE   SCHOONER   SAVANNAH.  123 

to  send  them  into  Court  for  adjudication  as  such.  Now,  all 
that  is  beyond  any  doubt;  and  is  it  possible  that  it  can  be  con 
tended  that  an  act  of  that  vast  extent,  of  that  wide  publicity 
and  great  power,  should  fail  even  to  justify  the  killing  of  a 
chicken,  without  charge  of  petty  larceny  ?  Does  it  not  shock 
the  common  sense  of  mankind  that,  in  the  case  of  men  dwell 
ing  there,  and  acting  in  subordination  to  the  existing  Govern 
ment  (you  cannot  sav  whether  voluntarily  or  not),  for  every 
shot  fired  and  man  killed  you  could  have  a  trial  for  murder ; 
that  for  every  horse  shot  you  could  have  an  action  of  trover ; 
and  for  every  trespass  you  could  have  an  action  of  trespass? 
This  practically  shocks  us.  How  is  it  in  view  of  the  doctrine 
of  hostis  humani  generis®  Here  are  ten  millions  of  people 
doing  acts  which,  if  done  only  by  three  or  four,  would  be  mur 
ders  and  treasons.  But  justice  must  be  equal.  If  reoluired  to 
execute  justice  upon  three  or  four,  you  are  bound  to  execute 
it  on  tens  of  millions?  Why,  that  is  the  very  thing  which 
publicists  tell  us  constitutes  civil  war.  A  civil  war  is  always 
a  rebellion  when  it  begins.  In  the  first  instance  it  commences 
with  a  few  individuals, — the  Catalines  of  the  country  ;  but 
when  it  gets  to  be  formed,  so  that  a  large  force  is  collected, 
and,  instead  of  the  Courts  of  Justice  before  existing,  it  substi 
tutes  Courts  of  its  own,  then  cornes  up  the  doctrine  of  human 
ity  which  belongs  to  the  laws  of  war, — that  you  can  no  longer 
speak  of  it  as  a  rebellion.  In  the  judgments  of  publicists 
when  a  rebellion  gets  to  that  head  that  it  represents  States, 
and  parts  of  a  nation,  humanity  stops  the  idea  of  private  jus 
tice,  and  it  goes  upon  the  principle  of  public  and  international 
law.  That  will  be  found  elaborately  stated  in  Yattel ;  but  I 
do  not  intend  to  trouble  you  with  any  lengthened  reading  of 
citations.  I  refer  to  the  18th  chap,  on  the  subject  of  civil 
war,  page  421 : 

"When  a  party  is  formed  in  a  State,  who  no  longer  obey  the  sovereign, 
and  are  possessed  of  sufficient  force  to  oppose  him ;  or  when,  in  a  Republic, 
the  nation  is  divided  into  two  opposite  factions,  and  both  sides  take  up  arms, — 
this  is  called  a  civil  war.  Some  writers  confine  this  term  to  a  just  insurrec 
tion  of  the  subjects  against  their  sovereign,  to  distinguish  that  lawful  resist 
ance  from  rebellion,  which  is  an  open  and  unjust  resistance.  But  what 
appellation  will  they  give  to  a  war  which  arises  in  a  Republic  torn  by  two 
factions,  or  in  a  Monarchy,  between  two  competitors  for  the  crown?  Custom 
appropriates  the  term  of  '  civil  war1  to  every  war  between  the  members  of 
one  and  the  same  political  society.  If  it  be  between  the  part  of  the  citizens, 
on  the  one  side,  and  the  sovereign,  with  those  who  continue  in  obedience  to 
him,  on  the  other, — provided  the  malcontents  have  any  reason  for  taking  up 
arms,  nothing  further  is  required  to  entitle  such  disturbance  to  the  name  of 
civil  war,  and  not  rebellion.  This  latter  term  is  applied  only  to  such  an 
insurrection  against  lawful  authority  as  is  void  of  all  appearance  of  justice. 
The  sovereign,  indeed,  never  fails  to  bestow  the  appellation  of  rebels  on  all 
such  of  his  subjects  as  openly  resist  him;  but,  when  the  latter  have  acquired 
sufficient  strength  to  give  him  effectual  opposition,  and  to  oblige  him  to  carry 
on  the  war  against  them  according  to  the  established  rules,  he  must  necessa 
rily  submit  to  the  use  of  the  term  '  civil  war.'  " 


124:  TRIAL    OF  THE   OFFICERS    AND   CREW 

The  moment  the  term  "civil  war"  comes  up,  the  idea  of 
punishing:,  as  rebellion  or  as  piracy,  the  capture  of  a  vessel,  is  an 
abuse  of  justice;  and  it  is  not  only  an  abuse  of  justice,  but  it 
is  an  abuse  of  the  fact,  to  say  that  those  who  are  large  enough 
to  be  a  nation  are  to  be  considered  as  the  enemies  of  all  na 
tions,  because  they  undertake  to  make  civil  war.  The  point  is 
not  founded  upon  any  technical  considerations ;  it  is  founded 
upon  the  great  doctrines  of  humanity  and  civilization.  Be 
cause,  what  is  to  be  the  end  of  it?  If  we  hang  twelve  men, 
they  hang  one  hundred  and  fifty-six.  If  we  treat  them  as 
rebels,  why  they  treat  our  captured  forces  as  these  rebels  are 
treated.  You  bring  on  a  war  without  any  civilizing  rules. 
You  bring  in  a  war  of  worse  than  Indian  barbarity.  You 
bring  in  a  war  which  can  know  nothing  except  bloodshed,  in 
battle  or  upon  the  block.  This  is  not  a  technical  notion.  It 
is  that,  when  civil  war  is  found  to  exist  (and  that  altogether 
comes  from  the  magnitude  of  the  opposition),  then  the  rules  of 
war  apply,  as  much  as  in  any  public  war,  so  far  as  to  protect 
the  individuals  acting  under  them.  What  would  be  said  if 
you  should  take  a  gentleman  who  was  made  prisoner  at  Fort 
Ilatteras,  and  try  him  for  treason,  and  hang  him?  What 
would  be  said  in  this  country,  or  in  Europe, — what  would  be 
said  anywhere,  in  the  present  or  in  future  ages, — as  to  an  act 
like  that?  Well,  why  not?  Because  justice  must  be  equal. 
If  you  do  it  to  one,  you  must  do  it  to  all.  If  you  do  it  to  all, 
YOU  carry  on  an  extermination  of  the  human  race,  against  all 
the  principles  which  can  animate  a  Court  of  Justice,  or  find  a 
seat  in  the  human  bosom.  Therefore,  if  we  have  the  fact  of 
civil  war,  we  have  the  rules  of  war  introduced. 

Now,  is  this  a  civil  war?  I  do  not  ask  the  question  of  how 
this  country  simply  should  regard  it;  but  on  the  question  in  a 
Criminal  Court,  as  to  whether  a  civil  war  exists  so  as  to  give 
protection  to  those  who  act  on  one  side  of  it,  I  have  the  con 
current  judgments  of  the  Courts.  Judge  Dunlop,  in  the  case 
of  the  Tropic  Wind,  says  there  can  be  no  blockade  except  in  a 
case  of  war ;  that  this  is  a  civil  war,  and  therefore  there  is  a 
blockade.  Judge  Cadwalader  says  this  is  a  civil  war,  and  in 
civil  war  you  may  make  captures  ;  and  Judge  Betts,  in  a  vastly 
profitable  judgment,  delivered  in  the  other  room,  confiscating 
millions  of  property  of  Union  men  in  the  South,  says  that  this 
is  civil  war.  Now,  if  the  Government  of  the  United  States  for 
feits  the  property  of  persons  residing  in  these  seceded  States, 
without  the  formality  of  a  trial  for  treason,  because  it  is  simply 
enemy's  property,  with  what  pretence  can  they  set  up  the  prin 
ciple  that  they  will  not  treat  them  as  enemies  ?  They  will  treat 
them  as  enemies,  for  the  purpose  of  confiscation,  and  not  as 
enemies,  but  as  traitors  and  pirates,  for  the  purpose  of  execu 
tion  ?  Why,  it  is  a  glaring  inconsistency.  It  strikes  us  off 


OF   THE    SCHOONER    SAVANNAH.  125 

our  feet  as  a  people  fit  to  be  looked  at  by  any  impartial  or 
rational  person,  in  political  jurisprudence. 

We  submit,  therefore,  that  there  was  a  civil  war.  Then 
what  was  the  taking  of  the  Joseph  ?  I  now  pass  by  the  Savan 
nah's  commission  for  a  moment.  The  capture  of  the  Joseph 
was  in  this  way  :  The  Joseph  was  approached  by  the  Savan 
nah,  and  her  Captain  ordered  on  board.  I  make  no  question 
about  its  being  a  taking  by  force ;  I  make  no  question  but  that, 
if  it  was  done  piratically,  there  was  force  enough  to  make  it 
piratical.  But  when  asked,  Why  do  you  do  it  2  Captain  Ba 
ker  replied,  "I  take  this  by  authority  of  the  Confederated 
States.  I  am  sorry  for  it ;  but  you  make  war  upon  us,  and  we 
have,  in  retaliation,  to  make  war  upon  you."  The  vessel  is 
taken  ;1  nothing  is  removed  from  her;  and  she  is  sent  in  as  a 
prize,  and  reaches  Georgetown.  Nothing  is  then  taken  from 
her,  but  she  is  proceeded  against  in  Court,  and  men  are  exam 
ined  there  as  to  the  vessel,  just  as  fairly,  and  probably  just  as 
good  men,  as  have  been  examined  in  the  other  room.  The 
question  is  tried.  It  is  an  undeniable  case  that,  if  this  is  a 
civil  war,  they  having  declared  war,  the  vessel  belongs  to  a 
belligerent,  and  she  is  taken,  condemned  and  sold,  according  to 
the  laws  which  have  dominion  over  that  country — a  proceeding 
(erroneous  as  it  may  be  in  the  ultimate  object  of  it)  according 
to  all  the  course  of  every  civilized  country.  And  yet,  we  are 
told,  that  is  piratical !  I  submit  that  this  cannot  be  so.  We 
cannot,  with  any  approach  to  consistency,  hold  that  we  can 
treat  them  both  as  enemies  and  rebels  at  the  same  time.  Not 
so.  Treat  them  as  rebels,  and  confiscate  the  property  by  due 
course  of  law,  and  you  can  get  nothing ;  because  it  is  a  singu 
lar  thing  that  in  this  country  there  is  no  such  thing  as  forfeit 
ure  for  treason.  You  cannot  forfeit  the  chattels,  but  only  the 
land,  and  that  for  life  ;  and  as  the  penalty  of  treason  is  death, 
leaving  no  life  estate  for  the  forfeiture  to  act  on,  there  is,  prac 
tically,  no  forfeiture  for  treason.  When  these  men  come  and 
say,  we  have  taken  this  property  as  an  enemy,  you  treat  them 
as  rebels.  It  seems  to  me  this  is  indulging  a  private  ani 
mosity  ;  it  is  indulging  a  fanatical  principle,  an  unworthy  prin 
ciple,  that  cannot,  be  carried  out  without  disregarding  the  great 
rules  that  belong  to  civilized  nations  with  regard  to  war. 

Again,  if  your  honors  please,  piracy  and  robbery  always 
have  secrecy  about  them.  The  open  robber,  who  meets  you  in 
noonday,  yet  secretes  the  plunder.  He  does  not  go  into  a 
Court  of  Justice  and  say,  "  Behold  what  I  have  taken  !  here 
are  the  jewels,  and  here  the  gold;  adjudge  if  they  are  lawful 
prize  !  "  The  robber  never  does  that.  Here  there  is  nothing 
secret  or  furtive.  The  vessel  and  cargo  are  taken  before  a 
Court  and  adjudicated  to  be  a  prize.  Let  us  take  a  case  which, 


126  TRIAL   OF   THE   OFFICERS    AND   CREW 

although  unlikely  to  happen,  might  occur.  A  man  goes  from 
seceding  Virginia  with  an  execution  to  levy  upon  a  man  in  loyal 
Virginia.  The  man  there  says,  "You  are  superseded  ;  you  have 
no  authority;"  and  it  is  tried  there.  The  Court  hold  that 
the  execution  and  levy  from  the  seceded  State  does  not  pass 
the  property;  but  would  it  be  possible  to  say,  there  was  any 
thing  furtive  in  the  taking  on  the  part  of  the  officer?  There 
is  nothing  more  plain,  in  criminal  law,  than  that,  if  you  act 
under  color  of  authority,  although  you  may  be  ruined  by  suits 
in  trespass,  yet  you  are  not  to  be  subjected  to  punishment  as 
having  done  what  was  felonious. 

But  there  is  one  other  consideration  which  I  would  present 
on  the  subject  of  piracy  :  it  is  robbery  upon  the  high  seas, — 
an  act  hostis  humani  generis.  It  is  made  an  offence  in  this 
country,  because  it  is  an  offence  against  the  law  of  nations; 
for  this  is  a  question  on  which  civilized  nations  do  not  differ. 
All  the  nations  of  Europe  look  on  at  this  controversy.  Here 
comes  a  man  that  the  District  Attorney  of  New  York  says  is 
hostis  humani  generis.  What  says  the  great  commercial  nation 
of  Great  Britain?  We  do  not  treat  you  as  pirates,  but  as  bel 
ligerents.  We  do  not  recognize  your  independence,  because 
you  have  not  achieved  it ;  but  when  the  question  arises,  whether 
we  shall  consider  you  as  pirates,  whom  we,  in  common  with  all 
other  nations,  have  a  right  to  take  up,  we  say  it  is  no  such 
thing.  Judge  Sprague  says,  that  they  say  it  is  no  such  thing. 
So,  too,  with  France.  Here  is  the  authority  of  a  great  Empire 
that  this  is  not  a  piratical  but  a  belligerent  act.  And  again, 
Spain  reiterates  the  same  decision.  Suppose  I  could  bring  the 
authority  of  the  highest  Court  in  Great  Britain  that,  just  in  such 
a  case  as  this,  the  Court  acquitted  a  man  of  piracy  ;  and  suppose 
I  could  add  to  that  a  similar  judgment  under  the  law  of  France ; 
and  bring  a  case  from  the  Courts  in  Spain,  deciding  the  question 
in  the  same  way  ;  and  so,  too,  from  Holland, — and  when  I  come 
down  to  .New  York,  the  District  Attorney  says  the  man  is 
hostis  humani  generis !  Is  it  not  absurd  ?  If  piracy  be  a 
crime  against  public  law,  it  is  so.  The  recognition  and  the 
application  of  the  doctrines  of  common  humanity  to  this  great 
struggle, — that  they  should  be  regarded  as  the  determining 
point  upon  this  great  question — it  seems  to  me  your  honors  will 
never  hesitate  in  admitting.  I,  therefore,  present  this  point, 
and  if  your  honors  will  permit  me,  after  this  discursive  argu 
mentation,  I  will  read  it  as  1  think  it  ought  to  be  decided  in 
law : 

"There  is  evidence  that  at  the  time  of  the  crew  of  the  Savannah  shipping 
for  the  cruise,  and  at  the  time  of  the  capture  of  the  Joseph,  the  authorities  of 
the  State  of  South  Carolina  had  become  parties  to  a  confederation  of  others 
of  the  United  States  of  America,  named  in  the  President's  proclamation. 


OF  THE    SCHOONER   SAVANNAH.  127 

That  under  such  confederation  a  Government,  in  fact,  existed ;  and  exer 
cised,  in  fact,  the  powers  of  civil  and  military  Government  over  the  territories 
and  people  of  those  States,  or  the  principal  part  thereof.  That  the  said  Con 
federate  States  had,  in  fact,  declared  war  against  the  United  States  of  America, 
and  were  openly  prosecuting  the  same,  with  large  military  forces,  and  the 
military  and  civil  organization  of  a  Government;  and  had  assumed,  and  were 
in  the  exercise  of,  the  power  of  issuing  commissions  to  private  armed  ships,  to 
make  captures  of  the  property  of  the  United  States,  and  the  citizens  thereof, 
as  prize  of  war,  and  to  send  them  into  port  for  adjudication  as  such.  And 
that  a  civil  war  thus,  in  fact,  existed.  That  the  taking  of  the  Joseph  was 
under  such  authority  of  the  Confederate  States,  and  in  the  name  of  prize  of 
war,  and  with  the  purpose  of  having  the  same  adjudged  by  a  Prize  Court  in 
South  Carolina,  or  some  other  of  the  said  Confederate  States.  And,  if  the 
facts  are  so  found,  then  the  taking  of  the  Joseph  was  not  piratical,  under  the 
eighth  section  of  the  Act  of  1790,  and  the  prisoners  must  be  acquitted  from 
the  charge  under  this  count." 

Now  I  approach  the  case  of  the  commission.  I  suppose 
that  the  District  Attorney,  by  not  proving  the  commission  as  a 
part  of  the  charge,  is  not  entitled  to  convict  any  of  these 
prisoners  under  the  commission  which  is  shown.  He  does  not 
prove  his  case ;  and  it  is  no  matter  what  we  have  proved, — he  is 
not  entitled  to  a  conviction  under  evidence  which  be  does  not 
bring. 

But  now  I  take  up  the  matter  of  the  commission,  and  the 
consideration  of  piracy  by  statute,  under  the  9th  section.  If 
your  honors  please,  it  is  right  that  I  should  give  some  history 
of  that  9th  section's  coming  into  the  law  of  piracy.  The  8th 
section  you  will  find  to  be  the  law  of  piracy,  by  the  law  of 
nations.  All  nations  hold  that  to  be  piracy  which  is  there 
described.  But,  in  the  llth  and  12-th  of  William  111.,  this  state 
of  things  existed :  King  James  had  abdicated  the  Crown  of 
England  twelve  years  before ;  William  and  Mary  reigned  to- 

gBther  six  years  ;  William  survived  her.  Here,  then,  was  a 
overnment  in  England,  with  a  pretender,  whom  the  English 
Government  had  declared  was  an  alien  from  the  Throne  ;  they 
had  banished  him.  But  he  was  at  the  Court  of  St.  Germain, 
in  France ;  and  there,  through  his  instrumentality,  privateers 
were  fitted  out  against  English  commerce.  Then  this  Act  was 
enacted  which  I  will  now  mention.  You  find  it  in  Hawkins* 
Pleas  of  the  Crown,  under  the  title  Piracy,  book  L,  chap.  37, 
sec.  7 : 

"  It  being  also  doubted  by  many  eminent  civilians  whether,  during  the 
Revolution,  the  persons  who  had  captured  English  vessels,  by  virtue  of  com 
missions  granted  by  James  II.,  at  his  Court  at  St.  Germain,  after  his  abdi 
cation  of  the  Throne  of  England,  could  be  deemed  pirates,  the  grantor  stiH 
having,  as  it  was  contended,  the  right  of  war  in  him,  it  is  enacted — 11  &  12 
"Win.  III.,  c.  7,  s.  8— 'That  if  any  of  His  Majesty's  natural-born  subjects,  or 
denizens  of  this  Kingdom,  shall  commit  any  piracy  or  robbery,  or  any  act  of 
hostility  against  others,  His  Majesty's  subjects,  upon  the  sea,  under  color  of 
any  commission  from  any  foreign  Prince  or  State,  or  pretence  of  authority 


128  TRIAL   OF   THE   OFFICERS    AJtfD   CREW 

from  any  person  whatsoever,  such  offender  or  offenders,  and  every  of  them, 
shall  be  deemed,  adjudged,  and  taken  to  be  pirates,  felons,  and  robbers;  and 
they,  and  every  of  them,  being  duly  convicted  thereof,  according  to  this  Act, 
or  the  aforesaid  statute  of  King  Henry  VIII.,  shall  have  and  suffer  such  pains 
of  death,  loss  of  lands,  goods,  and  chattels,  as  pirates,  felons,  and  robbers  upon 
the  seas  ought  to  have  and  suffer.'  " 

When  an  Act  of  Congress,  declaring  the  crime  of  piracy, 
was  enacted,  in  1790,  it  is  perfectly  apparent  that  those  who 
drew  up  the  Act  were  acquainted  with  Hawking  Pleas,  con 
taining  the  8th  section,  which  is  the  recognized  law  of  piracy 
by  all  nations,  and  from  that  book,  then,"  took  in  this  9th  sec 
tion  ;  because  there  was  no  exigency  in  our  Government  to  call 
for  it,  and  no  reason  for  its  introduction,  except  that  it  was 
found  in  a  book  familiar  to  those  who  were  legislating  for  this 
country.  In  regard  to  the  Act,  there  are  some  peculiarities 
which  are  very  striking,  and  which  bear  strongly  on  this  sub 
ject.  The  first  is  the  fact  that  a  commission,  although  from  a 
foreign  State,  taken  by  a  British  subject  or  denizen  of  England, 
and  committed  against  British  commerce,  protected  the  party 
against  the  charge  of  piracy, — because  the  thing  was  taken  as 
prize,  and  for  adjudication  according  to  the  principles  of  the 
laws  of  nations,  for  which  national  action  the  nation  which  took 
it  was  responsible.  But,  in  the  case  and  condition  of  James  II., 
the  English  declared  that  he  was  no  longer  of  England, — they 
declared  him  fallen  from  the  Crown,  and  a  foreigner.  He  had 
no  dominions,  and  no  place  where  the  poor  man  could  hold  a 
Prize  Court ;  and,  if  he  could  authorize  a  capture,  there  was  no 
Court  to  adjudicate  upon  it;  there  was  no  sovereign  to  be 
responsible  for  the  action  of  the  Prize  Court.  He  was  a  King 
without  responsibility,  and  without  the  power  of  having  Courts 
of  Adjudication  ;  and  it  was  a  necessity  arising  in  the  history  of 
English  law  that  that  kind  of  action  should  be  treated  as 
piratical.  The  English  adopted  that,  therefore,  as  the  statute 
piracy.  I  refer  your  honors  to  Phillimore's  International  Law 
(vol.  III.,  page  3y8),  where  all  the  discussion  and  reasons  are 
contained ;  and  they  all  are  reasons  applicable  to  a  Prince  with 
out  dominions,  without  Courts,  without  a  country ;  and  to  a 
foreign  Prince,  in  regard  to  English  property  and  English 
subjects. 

Now,  then,  let  us  see  how  these  men  stand.  Under  the  8th 
section,  those  men  who  were  not  citizens  of  the  United  States, 
are,  of  course,  protected  by  a  commission  from  a  Government 
de  facto.  Their  taking  was  not  aniino  furandi,  because  there 
was  a  commission.  The  very  enactment  of  the  statute  of  Wil 
liam  III.  was  upon  the  basis  that  it  was  not  piracy  where  there 
was  a  commission,  even  of  this  questionable  sort. 

I  say,  then,  in  my  third  point,  that  if  the  facts  are  found 


OF   THE    SCIIOOXER    SAVANNAH.  129 

a-  Mipp'-M'tl  in  the  preceding  point,  and  if  it  also  appears  that 
the  cm i mission  from  the  Confederated  States,  or  the  President 
thereof,  had  been  issued  for  the  Savannah,  and  that  the  cap 
ture  was  made,  under  color  thereof,  then,  as  to  the  prisoners 
shown  not  to  be  citizens  of  the  United  States,  the  taking  of  the 
Joseph  was  not  piratical  under  the  eighth  section  of  the  Act 
of  1790, — jirtft)  because  it  was  undercolor  of  authority;  nor, 
second,  was  it  piratical  under  the  ninth  section,  because  that 
only  applies  to  citizens  of  the  United  States  ;  and  the  prisoners, 
Del  Caruo,  etc.,  must  be  acquitted  under  the  ninth  as  well  as 
under  the  eighth  section. 

But  now  we  come  to  the  American  citizens  who  took  that 
commission,  and  we  are  to  see  with  some  accuracy  how  the 
case  stands  as  to  them, — which  involves  two  questions :  One 
is,  what  kind  of  "  other  person "  is  embraced  in  that  law  j 
And  the  other  is,  whether  this  indictment  is  supported  as  un 
der  a  commission  from  any  person  whatever?  Let  me  call 
your  attention  to  the  form  of  the  indictment  in  this  last  count 
of  the  declaration.  They  all  run  in  this  wav  :  that  these  per 
sons,  "being  citizens,  did,  on  pretence  of  authority  from  a  j><  /- 
son,  to  wit,  one  Jefferson  Davis"  &c.  That  is  all  that  is  said 
as  to  the  pretence.  Now  there  is  no  lack  of  skill  in  this  indict 
ment.  The  pleader  under  this  indictment  was  surrounded  with 
difficulties  very  grave  indeed,  lie  had  the  commission.  If  he 
had  described  it  as  a  commission  from  certain  foreign  States, 
n;imely,  South  Carolina,  Georgia,  etc.,  the  Government  would 
have  recognized  the  existence  of  those  States  in  the  most  formal 
manner  and  by  action  of  the  most  formal  kind.  If  he  said 
"Jefferson  Davis,  President  of  certain  Confederate  States," 
that  would  be  simply  that  the  pretence  of  authority  was  a  pre 
tence  of  authority  from  those  States,  and  the  same  consequence 
would  result.  \V7ell,  what  could  he  do?  The  only  way  in 
which  he  could  make  this  stand  at  all  was  by  saying  that  it  is 
an  authority  from  Jefferson  Davis,  as  an  individual.  That  is 
the  meaning  of  this  allegation. 

Now,  then,  under  the  facts  already  stated,  including  now 
the  commission  and  the  action  under  it,  the  taking  of  the 
Joseph  was  not  piratical,  under  the  ninth  section,  because  the 
commission  was  Irom  the  Confederate  States,  and  nut  from  "a 
person,  to  wit,  one  Jefferson  Davis,"  as  described  in  the  indict 
ment.  Now  that  leads  me  to  a  consideration  of  this  commis 
sion.  AVe  had  something  a  little  like  it  heie  yesterday,  when 
the  warrant  issued  by  Mr.  Buchanan  Henry  was  given  in  evi 
dence  for  the  arrest  of  these  lnen.  I  suppose  Tl  would  be 
charged  with  ridicule  in  the  last  degree  if  1  said  they  were 
arrested  by  the  authority  of  Buchanan  Henry,  or  under  pre 
tence  of  authority  irom  Buchanan  Henry ;  yet  the  wan  ant 


130  TRIAL   OF   THE   OFFICERS    AND    CREW 

ran  in  the  name  of  Buchanan  Henry.  Now  let  us  see  whether 
this  commission  supports  the  allocation  of  its  being  a  commis 
sion  from  a  private  person.  The  allegation  is,  that  the  capture 
was  made  under  pretence  of  authority  from  one  Jefferson  Da 
vis.  The  commission  runs  just  as  the  President's  commission 
to  your  honors  : 

"  JEFFERSON  DAVIS, 
"PRESIDENT  OF  THE  CONFEDERATE  STATES  OF  AMERICA. 

"  To  all  who  shall  see  these  present*,  greeting : — Know  ye,  that  by  virtue 
of  the  power  vested  in  me  by  law,  I  have  commissioned,  and  do  hereby  com 
mission,  have  authorized,  and  do  hereby  authorize,  the  schooner  or  vessel 
called  the  Savannah  (more  particularly  described  in  the  schedule  hereunto 
annexed),  whereof  T.  Harrison  Baker  is  commander,  to  act  as  a  private 
armed  vessel  in  the  service  of  the  Confederate  States,  on  the  high  seas,  against 
the  United  States  of  America,  their  ships,  vessels,  Broods,  and  effects,  and  those 
of  her  citizens,  during  the  pendency  of  the  war  now  existing  between  the  said 
Confederate  States  and  the  said  United  States. 

"  This  commission  to  continue  in  force  until  revoked  by  the  President  of 
the  Confederate  States  for  the  time  being. 

"  Schedule  of  description  of  the  vessel : — Name,  Schooner  Savannah  ;  ton 
nage,  53JJ  tons  ;  armament,  one  large  pivot  gun  and  small  arms ;  number  of 
crew,  thirty. 

4<  Given  under  my  hand  and  the  seal  of  the  Confederate  States,  at  Mont 
gomery,  this  18th  day  of  May,  A.  D.  1861. 

"  JEFFERSON  DAVIS. 

"By  the  President— R.  TOOMBS,  Secretary  of  State." 

Now  I  submit  that,  if  they  bad  frame:]  an  indictment  for 
taking  a  commission  under  the  King  of  England,  and  it  had 
been  under  the  Government  of  England  as  a  foreign  State, 
without  naming  the  individual,  such  a  commission  as  this 
would  sustain  it.  If  they  had  indicted  as  taking  a  commission 
out  under  any  foreign  State  or  nation,  a  commission  in  this 
way  would  have  sustained  that  indictment ;  because  the  officer 
is  merely  the  authenticator  of  the  instrument ;  the  authority  is 
not  his, — it  is  not  under  his  authority  ;  lie  is  the  mere  ministe 
rial  officer,  in  fact,  of  the  Government. 

Now  I  submit,  that  this  taking  cannot  be  held  piratical, 
under  the  ninth  section,  on  this  indictment;  because  it  was  a 
taking,  not  on  pretence  of  authority  from  Jefferson  Davis,  but 
under  authority  of  the  Confederate  Stato,  exercised  by  JeilVr- 
son  Davis.  And,  in  a  case  of  this  kind,  I  must  sav  that  I  con 
sider  it  will  prove  the  g;  cutest  Godsend  to  the  Government, 
and  to  the  prisoners  on  both  sides  who  now  anxiously  await 
the  result,  if,  without  touching  the  other  questions,  this  indict 
ment  shall  fall  to  the  ground  on  a  mere  technical  point. 

That  is  one  reason.  Another  reason  is  this  :  The  Act  is  for 
taking  vessels  under  a  commission  from  any  ibivign  Prince  or 
State,  or  on  pretence  of  authority  from  any  person.  ISTow 


OF   THE    SCHOONER    PAVANNAH.  131 

what  is  ,1  foreign  Prince  or  a  foreign  State?  If  your  honors 
please,  at  the  time  this  Act  was  enacted,  within  some  three 
yei'rs  of  the  United  States  coming  together,  is  it  conceivable 
that  the  thought  entered  into  the  heart  of  any  man  who  had 
anything  to  do  with  it  that  it  was  to  take  effect  against  any 
man  acting  under  the  authority  of  any  of  the  States  of  this 
Union?  The  States  all  were  authorized,  under  certain  circum 
stances,  to  have  ships-of-war  and  to  have  armies.  There  was 
no  telling  what  collision  there  might  be  ;  and  the  idea  that  this 
Act,  almost  a  literal  transcript  from  the  English  statute  of  11 
and  12  William  111.,  contemplated  that  punishment  for  acting 
under  the  authority  of  domestic  persons,  is  inconceivable. 

Jn  construing  an  Act  so  highly  penal  as  this  \\e  must  be 
very  sure  that  we  are  not  only  within  the  letter,  hut  within  the 
very  spirit  and  contemplation,  of  the  Act;  and  can  you  think 
that  the  trainers  of  this  Government  gravely  provided  for  the 
offence  of  taking  a  commission  under  some  of  the  persons  act 
ing  as  Governor,  or  in  connection  with  the  domestic  in-titu- 
tions  of  this  country  ?  I  submit  that  the  Act  was  intended  to 
operate  against  foreign  States  and  nations,  and  a  foreign  per 
son;  and  it  is  inconceivable  that  the  Act  should  have  been  con- 
tern  plated  to  embrace  any  such  thing  as  is  now  brought  up.  1 
submit,  therefore,  as  the  third  of  my  specifications  under  this 
point,  that  Jefferson  Davis  was  not  a  foreign  person,  nor  assum 
ing  the  authority  of  a  foreign  Prince  or  Kuler.  The  statute 
was  one  against  commissions  under  foreign  authority  of  some 
kind  or  other,  either  Prince,  or  State,  or  person. 

But  I  now  draw  your  attention  to  another  feature  of  the 
statute,  which  seems  to  me  equally  decisive.  This  statute  is 
transmitted  to  us  from  England,  and  that  which  was  the  design 
and  exigency  of  its  adoption  there  is  to  bear  with  great,  if  not 
decisive,  iorce,  upon  its  construction  here.  We  took  it  because 
they  had  it,  and  we  took  it,  therefore,  for  re  isons  similar  to 
theirs.  Now  what  was  the  real  difficulty  there?  It  was  this: 
that  a  Prince  without  dominion,  a  Prince  having  no  Govern 
ment  de  facto,  a  mere  nominal  Prince,  undertook  to  issue  com 
missions  throughout  the  world  against  British  commerce. 
Evils  that  are  very  manifest  and  plain,  in  regard  to  the  law  of 
prizes,  apply  to  that  case.  The  prizes  could  not  be  adjudicated 
in  his  Courts;  he  had  none.  This  was  an  enactment  against 
Princes  who  had  abdicated  and  were  without  dominion.  Such 
things  were  common,  as  well  in  the  time  of  William  III.  as 
since.  Abdicated  Princes  very  soon  turn  to  be  robbers,  whose 
only  object  is  to  get  re-established,  and  they  are  not  scrupulous 
as  to  means.  They  stand  as  mere  fictions,  undertaking  to 
exercise  authority,  with  none  of  the  responsibilities  which 
belong  to  Killers.  H<JW  different  it  is  with  this  Jefferson  Davis  [ 


132  TRIAL   OF   THE   OFFICERS   AND   CREW 

I  speak  now  in  no  degree  of  his  merits,  or  as  lessening  that 
feeling  which  my  fellow-citizens  and  I  share  alike  upon  the 
subject  of  this  rebellion.  But  here  is  a  man,  not  a  nominal 
Prince  or  Rnler,  but  he  is  (if  you  please  without  right)  Ruler  of 
ten  millions  of  people.  Is  this  Act,  which  is  intended  to  meet 
the  case  of  a  man  without  people,  or  dominion,  or  force — with 
out  any  thing  but  the  name  and  claim  of  Ruler — to  be  applied 
to  a  man  who  represents  (rightfully  or  wrongfully)  a  large  frac 
tion  of  a  great  nation?  To  say  that  every  man  who  takes  a 
commission  (applying  as  well  to  civil  as  to  military  commis 
sions),  that  any  man  who  takes  a  commission,  from  him,  is 
either  a  robber  or  a  pirate — if  on  land,  a  robber,  if  on  sea,  a 
pirate — is  unjust  and  unreasonable — contrary  to  every  principle 
that  governs  the  laws  of  nations.  Patriotic  vituperation  may  go 
far — patriotic  spirit  and  feeling  may  go  far — but  there  is  a  limit 
to  every  thing  that  is  real.  The  human  mind,  as  it  seems  to  me, 
and  the  human  heart,  cannot  go  to  the  extent  of  the  doctrine 
that  they  can  be  treated  as  robbers  who  act  under  a  Govern 
ment  extending  de  facto  so  far  and  doing  de  facto  so  many 
things  throughout  .upon  the  principles  of  civilized  warfare,  and 
having  a  vast  territory,  and  vast  numbers  of  people  acting  as 
it  dictates.  It  is  perverting  the  law  of  piracy  to  apply  it  to  a 
case  so  entirely  different. 

Now  it  comes  back  to  the  fact  that  this  c*  pretence  of  au 
thority  "  was  the  authority  of  all  those  States.  Those  States, 
when  they  come  back  to  the  Union,  if  they  ever  do,  will  come 
back  with  all  their  powers  as  original  States.  The  Confedera 
tion  you  may  call  illegal  and  improper,  but  it  is  a  Confedera 
tion  de  facto  /  its  right  may  be  questioned,  but  it  is  a  de  facto 
Government,  with  this  gentle-man  presiding  over  it,  and  per 
forming  the  duties  which,  as  the  Ruler  of  a  great  nation,  de 
volve  upon  him — bringing  out  armies  by  hundreds  of  thousands, 
bringing  out  treasures  by  the  million, — and  yet  you  are  to  say 
it  has  no  color  of  authority.  It  is  idle,  it  seems  to  me,  to  say 
that  a  man  situated  as  Jefferson  Davis  is  was  intended  by  a 
law  against  a  mere  nominal  Prince.  I  submit  that  because 
Jeif.rson  Davis  was  actually  the  Chief  «  f  a  Confederation  of 
States,  not  foreign,  exercising  actual  power  and  government 
over  large  territories,  with  a  large  population,  under  an  organ 
ized  Government,  having  Courts  within  its  territories  for  the 
adjudication  of  captures, — that  upon  each  of  these  grounds 
Ilarleston,  as  well  as  the  others  who  are  citizens,  should  be 
acquitted  under  the  9th  section. 

That  is  all  the  argument  which  I  address  particularly ;  and 
I  beg  leave  to  read  two  or  three  general  propositions  on  the 
construction  of  the  law  in  this  matter  : 

I. — The  recognition,  by  the  great  commercial  nations  of  the 


OF   THE   SCHOONER   SAVANNAH.  166 

world,  of  the  Confederate  States  as  belligerents,  and  not  pirates 
and  robbers,  prevents  the  captures  under  authority  from 
being  held  piratical  under  the  law  of  nations. 

II. — 1.  The  ninth  section  of  the  Act  of  1790  has  not  in  view 
any  application  to  the  States  then  recently  united  as  the  United 
States  of  America,  or  to  the  persons  having  authority  de  facto 
in  them. 

2.  That  section  had  in  view  foreign  Princes  and  States,  and 
foreign  authority  only. 

3.  The  authority   from   any  person   in   that  section   has 
reference  to  persons  without  the  possession,  in  fact,  of  terri 
tory. 

If  your  honors  please,  I  have  endeavored,  so  far  as  it  was 

Eossible,  to  abbreviate  what  I  have  had  to  say  on  this  subject. 
t  is  a  very  interesting  one,  undoubtedly,  not  only  to  the  legal 
student,  but  to  all  persons  in  the  country.  This  war  is  a  war 
to  reclaim  those  States.  To  attempt  to  reclaim  them  by 
prosecutions  for  piracy,  or  by  acts  of  hostility  which  disregard 
them  as  having  any  form  of  society, — it  seems  to  me  that  110 
national  evil  could  be  greater.  The  idea  that  in  a  commercial 
city  it  is  very  offensive  that  there  should  be  privateers,  is  a 
trine.  The  navy  can  regulate  that.  Let  them  look  more  to  the 
privateers  that  want  to  get  out  than  to  the  prizes  that  want  to 
come  in,  and  that  will  be  provided  for.  AVe  need  not  violate 
principles  of  law,  or  of  humanity,  or  the  common  sense  of  the 
world,  to  produce  an  effect  of  that  kind.  We  need  to  show 
that,  in  the  midst  of  all  this  excitement  and  outcry  against 
piracy — in  the  midst  of  a  press  that  never  names  any  of  these 
people  without  calling  them  "pirates" — the  men  brought  in 
always  in  chains,  for  the  purpose  of  exciting  public  indignation 
against  them  and  preventing  their-  being  treated  as  men  of 
common  rights  and  common  interests  with  us — all  which  is 
very  humiliating,  it  seems  to  me — in  a  Court  of  Justice  no  such 
feelings  will  be  succumbed  to. 

Certain  I  am  that,  where  I  stand,  no  such  principles  will  be 
put  in  use.  Justice  will  come — severe  and  stern,  it  may  be — 
but  it  will  be  justice,  with  truth,  and  reason,  and  humanity, 
and  political  tenderness  accompanying  all  its  acts  and  all  its 
judgments. 

Mr.  Larocque:  If  the  Court  please,  I  had  hoped  to  be  saved 
the  necessity  of  addressing  jour  honors  upon  these  propositions 
of  la\v  ;  but,  in  the  distribution  that  has  been  made  among  the 
Counsel,  it  has  fallen  to  my  lot  to  present  the  propositions  in 
reference  to  which  my  opening  was  made,  yesterday,  to  the 
Jury,  and  which  will  be  adverted  to  by  the  counsel  who,  on 


134  TRIAL   OF   THE    OFFICERS   AND    CREW 

our  side,  will  close  the  case ;  and,  simply,  without  detaining 
your  honors,  at  this  late  hour,  with  any  remarks  upon  them 
further  than  the  reading  of  some  extracts  from  authorities  I 
have  collected,  1  will  present  the  propositions,  leaving  them  to 
the  action  of  your  honors,  and  to  the  remarks  of  my  associate, 
who  will  close  this  case,  after  we  have  ascertained  the  direction 
it  will  take  before  the  Jury. 

The  first  proposition  I  had  stated,  with  reference  to  jurisdic 
tion  :  "  That  the  defendants,  after  their  capture  and  confinement 
as  criminals, for  the  acts  charged  in  this  indictment,  having  been 
taken  within  the  D  strict  of  Virginia,  on  board  the  vessel  on 
which  they  were  so  confined  before  being  brought  within  the 
Southern  District  of  New  York,  cannot  be  convicted  under  this 
indictment." 

In  reference  to  that,  there  are  a  number  of  additional 
authorities  that  I  will  furnish  to  yonr  honors.  In  the  case  of 
the  United  States  vs.  Charles  A.  Greiner^  tried  before  Judge 
Cadwalader,  in  the  Philadelphia  District,  the  defendant  had 
been  arrested  under  a  charge  of  treason  committed  in  Georgia. 
It  seems  to  have  been  understood,  by  the  learned  counsel  on 
the  other  side,  that  the  question  of  jurisdiction  may  be  in 
fluenced  by  the  fact  of  whether  there  was  any  possibility  of 
these  prisoners  being  tried  in  Virginia  or  not ;  and  it  is  in  refer 
ence  to  that  point  that  I  cite  this  case.  Judge  Cadwalader 
says : 

"  The  questions  in  this  case  are  more  important  than  difficult.  On  the  2d 
of  January  last  an  artillery  company  of  the  State  of  Georgia,  mustered  in 
military  array,  took  Fort  Pulaski,  in  that  State,  from  the  possession  of  the 
United  States,  without  encountering  any  forcible  resistance.  They  garrisoned 
the  post  for  some  time,  and  left  it  in  the  possess;on  of  the  government  of  the 
State.  The  accused,  a  native  of  Philadelphia,  where  he  has  many  connections, 
resides  in  Georgia.  He  was  a  member  of  this  artillery  company  when  it 
occcupied  the  fort,  and,  for  aught  that  appears,  may  still  be  one  of  its  mem 
bers.  He  was  not  its  commander.  Whether  he  had  any  rank  in  it,  or  was 
only  a  private  soldier,  does  not  appear,  and  is,  I  think,  unimportant.  He  is 
charged  with  treason  in  levying  war  against  the  United  States.  The  overt 
act  alleged  is,  that  he  participated,  as  one  of  this  military  company,  in  the 
capture  of  the  fort,  and  in  its  detention  until  it  was  handed  over  to  the  per 
manent  occupation  of  the  authorities  of  the  State. 

"The  primary  question  is.  whether,  if  his  guilt  has  been  sufficiently 
proved,  I  can  commit  him  for  trial,  detain  him  in  custody,  or  hold  him  to  bail 
to  answer  the  charge.  The  objection  to  my  doing  so  is,  that  the  olfence  was 
committed  in  the  State  of  Georgia,  where  a  Court  of  the  United  States  can 
not,  at  present,  be  held,  and  where,  as  the  JHstrict  Attorney  admits,  a  speedy 
trial  cannot  be  had.  The  truth  of  this  admission  is  of  public  notoriety. 

"The  Constitution  of  the  United  States  provides  that  in  all  criminal  prose 
cutions  the  accused  shall  enjoy  the  right  to  a  xj><-c.fl>/  trial  by  a  Jurv  of  the 
State  and  JJixtrirt  wherein  the  crime  shall  have  been  committed.  The  only 
statute  which,  if  the  Courts  of  the  United  States  for  the  State  of  Georgia  were 


OF   THE    SCHOONER   SAVANNAH.  135 

open,  would  authorize  me  to  do  more  than  hold  this  party  to  security  of  the 
peace,  and  for  good  behavior,  is  the  S^.d  section  of  the  Judiciary  Act  of  the 
24th  September,  1789.  That  section,  after  authorizing  commitments,  &c.,  for 
trial,  before  any  Cou»t  of  the  United  States  having  cognizance  of  the 
offence,  provides  that  if  the  commitment  is  in  a  J)i>trict  other  than  that  in 
\vhu-h  the  offence  is  to  be  tried,  it  shall  be  the  duty  of  the  Judge  of  the  Dis 
trict  where  the  delinquent  is  imprisoned  xc«xomi.llii  to  issue,  and  of  the  Mar 
shal  of  the  same  District  to  execute,  a  warrant  for  the  removal  of  the  offender 
to  the  District  in  which  the  trial  is  to  be  had.  The  District  Attorney  of  the 
United  States  does  not  ask  me  to  issue  such  a  warrant  for  this 'party's  re 
moval  to  Georgia  for  trial.  Therefore  I  can  do  nothing  under  this  Act  of 
Congress.  It  does  not  authorize  me  to  detain  him  in  custody  to  abide  the 
ultimate  result  of  possible  future  hostilities  in  Georgia,  or  to  hold  him  to  bail 
for  trial  in  a  Court  there,  of  which  the  sessions  have  been  interrupted,  and 
are  indefinitely  postponed." 

Iii  reference  to  the  counts  of  the  indictment  founded  upon 
the  8th  section  of  the  Act  of  1790  and  the  Act  of  1820,  the 
propositions  I  have  are  these: 

"  /Second,  That  to  convict  the  defendants,  under  either  of  the 
first  five  counts  of  the  indictment,  the  Jury  must  have  such 
evidence  as  would  warrant  a  conviction  for  rubbery  if  the  acts 
proved  had  been  performed  on  land. 

"  77///v7,  That  the  defendants  cannot  be  convicted  of  robbery, 
in  the  capture  of  the  Joseph,  unless  she  was  taken  with  a 
piratical  and  felonious  intent. 

Fourth,  That  if  the  defendants,  at  the  time  of  her  capture, 
were  acting  under  the  commission  in  evidence,  and,  in  good 
faith,  believed  that  such  commission  authorized  her  capture,  they 
did  not  act  with  a  piratical  or  felonious  intent,  and  cannot  be 
convicted  under  either  of  the  first  five  counts  in  the  indict 
ment." 

There  are  one  or  two  authorities  I  did  not  state  yesterday, 
which  1  beg  now  to  furnish,  as  some  additional  authorities  have 
been  handed  up  on  the  other  side  : 

The  Josefa  Segunda,  5  Wheat  on,  357.  In  this  case  Judge 
Livingston  says : 

"  Was  the  General  Arismendi  a  piratical  cruiser?  The  Court  thinks  not. 
Among  the  exhibits  is  a  copy  of  a  commission,  which  is  all  that  in  such  a 
c;ise  can  be  expected,  which  appears  to  have  been  issued  under  the  authority 
of  the  Government  of  \renezuela.  This  Republic  is  composed  of  the  inhabit 
ants  of  a  portion  of  the  dominions  of  Spain,  in  South  America,  which  have 
been  for  some  time,  and  still  are,  maintaining  a  contest  for  independence  with 
the  mother  country.  Although  not  acknowledged  by  our  Government  as  an 
independent  nation,  it  is  well  known  that  open  war  exists  between  them  and 
His  Catholic  Majest}*,  in  which  the  United  States  maintain  strict  neutrality. 
In  this  state  of  tilings,  this  Court  cannot  but  respect  the  belligerent  rights  of 
both  parties,  and  does  not  treat  as  pirates  the  cruisers  of  either  so  long  as 
they  act  under  and  within  the  scope  of  their  respective  commissions." 


136  TRIAL   OF   THE    OFFICERS    AND   CREW 

In  the  United  States  vs.  The  Brig  Malek  Adhel  (2  Howard's 
U.  S.  Eep.  211),  as  to  the  Act  of  1819,  Judge  Story  (page  232) 
says: 

"  Where  the  Act  uses  the  word  piratical,  it  does  so  in  a  general  sense, — 
importing  that  the  aggression  is  unauthorized  by  the  law  of  nations,  hostile 
in  its  character,  wanton  and  cruel  in  its  commission,  and  utterly  without  any 
sanction  from  any  public  authority  or  sovereign  power.  In  short,  it  nn<ni* 
that  the  act  belongs  to  the  class  of  offences  which  pirates  are  in  the  huliit  of 
perpetrating,  whether  they  do  it  fur  purposes  of  plunder,  or  purposes  of  hatred, 
•revenge,  or  wanton  abuse  of  power.  A  pirate  is  deemed — and  properly  deemed 
— IIOSTIS  nuMAXi  GENERIS.  But  why  is  he  so  deemed?  Because  he  commit* 
hostilities  upon  the  subjects  and  property  of  any  or  all  nations,  without  any 
regard  to  right  or  duty,  or  any  pretence  of  public  authority.  If  he  willfully 
sinks  or  destroys  an  innocent  merchant  ship,  without  any  other  ohject  than 
to  gratify  his  lawless  appetite  for  mischief,  it  is  just  as  much  piratical  aggres 
sion,  in  the  sense  of  the  law  of  nations,  and  of  the  Act  of  Congress,  as  if  he 
did  it  solely  and  exclusively  for  the  sake  ot  plunder,  lucri  canst!.  The  law 
looks  to  it  as  an  act  of  hostility ;  and,  being  committed  by  a  vessel  not  com 
missioned  and  engaged  in  lawful  warfare,  it  treats  it  as  the  act  of  a  pirate,  and 
one  who  is  emphatically  hostis  humani  generis.'1'' 

Then  upon  the  question  that  this  commission  is  only  by 
color  of  authority  from  an  unrecognized  power,  and  that  the 
authority  to  grant  such  a  commission  is  disputed,  I  refer  to  the 
case  of  JDavison  vs.  Certain  Seal  Skins  (2  Paine's  C.  0.  R.  382), 
which  was  a  case  of  salvage  of  property  after  a  piracy  alleged 
to  have  been  committed  by  Louis  Yernet,  at  Port  St.  Louis,  in 
the  Eastern  Falkland  Islands,  by  taking  them  from  a  vessel, — he 
wrongfully  and  unlawfully  Claiming  and  pretending  to  be 
Governor  of  the  Islands,  under  Buenos  Ayres.  The  Court 
says : 

"Robbery  on  the  high  seas  is  understood  to  be  piracy  by  our  law.  The 
taking  must  be  felonious.  A  commissioned  cruiser,  by  exceeding  his  author 
ity,  is  not  thereby  to  be  considered  a  pirate.  It  may  be  a  marine  trespass, 
but  not  an  act  of  piracy,  if  the  vessel  is  taken  as  a  prize,  unless  taken  felo 
niously,  and  with  intent  to  commit  a  robbery :  the  quo  animo  may  be  in 
quired  into.  A  pirate  is  one  who  acts  solely  on  his  own  authority,  without 
any  commission  or  authority  from  a  sovereign  State,  seizing  by  force  and  ap 
propriating  to  himself,  without  discrimination,  every  vessel  he  meets  with  ; 
and  hence  pirates  have  always  been  compared  to  robbeis.  The  only  differ 
ence  between  them  is  that  the  sea  is  the  theatre  of  action  for  the  one,  and  the 
land  for  the  other." 

By  referring  to  this  case,  pp.  334,  335,  your  honors  will 
find  that  Buenos  Ayres  had  no  lawful  jurisdiction  over  the 
islands,  and  that  our  Executive  Government  had  so  decided; 
but  Buenos  Ayres  avowed  the  acts  of  those  claiming  to  act 
under  her  authority,  and  our  Government  discharged  the  pris 
oners  who  had  been  captured  as  pirates,  disclaiming,  undrr  those 
circumstances,  to  hold  them  personally  criminally  responsible. 

The  next  proposition  which  I  state  is  this:  "  That,  by  the 
public  law  of  the  world,  the  law  of  nations,  and  the  laws  of 


OF   THE    SCHOONER    SAVANNAH.  13T 

war,  the  commission  in  evidence,  supported  by  the  proof  in  the 
ca<<'  as  to  the  color  of  authority  under  which  it  was  issued,  would 
afford  adequate  protection  to  the  defendants  against  a  convic 
tion  for  piracy  ;  and  being  an  authority  emanating  neither 
from  a  foreign  Prince  nor  foreign  State,  nor  from  a  person 
merely,  the  offence  charged  in  the  last  five  counts  of  the  indict 
ment,  is  not  within  the  purview  of  the  9th  section  of  the  Act  of 
1790,  and  the  defendants  cannot  be  convicted  under  either  of 
those  counts,  if  they  acted  in  good  faith  under  that  commis 
sion." 

I  refer  your  honors  to  the  case  of  the  Santissima  Trinidad, 
7  "Wheaton,  283,  to  the  opinion  of  Judge  Story,  in  which  he 
e ays : 

"  There  is  another  objection  urged  against  the  admission  of  this  vessel  to 
the  privileges  and  immunities  of  a  public  ship,  which  may  as  well  be  disposed 
of  in  connection  with  the  question  already  considered.  It  is,  that  Buenos 
Ayres  has  not  yet  been  acknowledged  as  a  sovereign  independent  Government, 
by  the  Executive  or  Legislature  of  the  United  States,  and  therefore  is  not 
entitled  to  have  her  ships-of-war  recognized  by  our  Courts  as  national  ships. 
We  have,  in  former  cases,  had  occasion  to  express  our  opinion  on  this  point. 
The  Government  of  the  United  States  has  recognized  the  existence  of  a  civil 
war  between  Spain  and  her  Colonies,  and  has  avowed  a  determination  to 
remain  neutral  between  the  parties,  and  to  allow  to  each  the  same  rights  of 
asylum,  and  hospitality,  and  intercourse.  Each  party  is,  therefore,  deemed 
by  us  a  belligerent  nation,  having,  so  far  as  concerns  us,  the  sovereign  rights 
of  war,  and  entitled  to  be  respected  in  the  exercise  of  those  rights.  We 
cannot  interfere  to  the  prejudice  of  either  belligerent,  without  making  our 
selves  a  party  to  the  contest  and  departing  from  the  posture  of  neutrality. 
All  captures  made  by  each  must  be  considered  as  having  the  same  validity; 
and  all  the  immunities  which  may  be  claimed  by  public  ships  in  our  ports, 
under  the  laws  of  nations,  must  be  considered  as  equally  the  right  of  each, 
and  as  such  must  be  recognized  by  our  Courts  of  Justice,  until  Congress 
shall  prescribe  a  different  rule.  This  is  the  doctrine  heretofore  asserted  by 
this  Court,  and  we  see  no  reason  to  depart  from  it." 

Your  honors,  by  referring  to  the  case  of  The  Bello  Corun- 
nes,  6  Wheaton,  152,  will  see  the  doctrine  laid  down  distinctly, 
that  acts  may  be  piratical  for  all  civil  purposes  which  would 
not  authorize  the  conviction  of  the  perpetrators  criminally  as 
pirates ;  e.  g.,  a  citizen  of  the  United  States,  taking  from  a 
State  at  war  with  Spain  a  commission  to  cruise  against  that 
power,  contrary  to  the  14th  art.  of  the  Spanish  Treaty; — and 
the  Court  held,  in  that  case,  that  that  would  involve  the  con 
sequences  of  a  piracy,  for  the  purpose  of  condemnation  of  prop 
erty  ;  but  it  would  not  be  criminal  piiacy,  under  either  the 
law  of  nations  or  of  the  United  States. 

On  the  general  subject  uf  privateers  I  had  a  reference  to 
Yattel,  but  1  do  not  think  it  necessary  to  read  it,  because  the 
authorities  on  that  subject  cover  it  so  fully. 

I  come  now,  it'  your  honors  please,  to  what  my  learned 


138  TRIAL    OF   THE   OFFICERS    AND    CREW 

friend,  when  lie  addressed  the  Court  on  the  part  of  the  Gov 
ernment,  lias  been  pleased  to  call  the  political  part  of  this  case; 
and  I  have  distinctly  stated  in  my  propositions  what  I  contend 
ed  for  on  that  subject.  In  the  first  place,  that  the  Federal 
Executive  Government,  and  the  executive  governments  of  the 
States,  under  the  Constitution  of  the  United  States,  each  pos 
sess  the  jurisdiction  to  decide  whether  their  respective  acts  are 
within  or  exceed  the  limits  of  their  respective  constitutional 
powers,  in  cases  of  collision  between  them  in  their  administra 
tive  acts,  operating  upon  the  public  domain,  or  upon  the  State, 
or  its  citizens  as  a  body  politic. 

I  shall,  without  stopping  for  any  discussion,  simply  state 
the  subordinate  propositions  by  which  I  think  that  is  established, 
and  give  a  reference  to  the  authorities.  I  say,  in  the  first  place, 
as  I  said  to  the  Jury,  that  citizens  of  the  United  States  owe  a 
divided  allegiance,  partly  to  the  United  States  and  partly  to 
their  respective  States.  They  can  commit  treason  against 
either  ;  for  the  State  constitutions  and  laws  define  and  punish 
trea-on  against  the  States,  as  the  Constitution  of  the  United 
States  does  treason  against  them. 

Ihe  Federal  and  State  Governments  are  each  supreme 
and  sovereign  within  the  limits  of  their  respective  jurisdictions 
under  the  Federal  and  State  Constitutions;  each  operates  di 
rectly  upon  the  citizen,  and  each  also  operates  as  a  check  and 
restriction  upon  the  other,  and  upon  the  encroachments  of  the 
other,  in  seeking  to  extend  beyond  legitimate  limits  its  jurisdic 
tion  over  the  citizen,  or  over  the  public  domain  common  to 
both.  Now,  if  your  honors  ple;^e,  in  regard  to  that,  I  will 
very  briefly  refer  you  to  what  I  rely  upon.  1  refer,  in  the  tiist 
place,  to  sections  2  and  3,  of  Article  tith,  «.f  the  Constitution  of 
the  United  States. 

"  Sec.  2.  This  Constitution,  and  the  laws  of  the  United  States,  which 
shall  l>e  made  in  pursuance  thereof',  and  all  treaties  made,  or  which  shall  be 
made,  under  the  authority  of  the  United  States,  shall  be  the  supreme  law 
of  the  land;  and  the  Judges  in  every  State  shall  he  bound  thereby,  anything 
in  the  constitution  or  laws  of  any  State  to  the  contrary  notwithstanding. 

"Sec.  3.  The  Senators  and  Representatives  before  mentioned,  and  the 
members  of  the  several  State  Legislatures,  and  all  executive  and  judicial  olli- 
cers,  both  of  the  United  States  and  of  the  several  States,  shall  be  bound  by 
oath  or  affirmation  to  support  this  Constitution;  but  no  religious  te"st  shall 
ever  be  required  as  a  qualification  to  any  office  or  public  trust  under  the  Uni 
ted  Stale,,/1 

In  the  amendments  to  the  Constitution  of  the  United  States, 
Articles  1)  and  10,  \\e  find  this  hiii^u;; 

"The  enumeration  in  the  Constitution  of  certain  rights,  shall  not  be  con 
strued  to  deny  or  disparage  others  retained  by  the  people.  The  power?  not 
delegated  to  the  United  States  by  the  Constitution,  nor  prohibited  by  it  to 
the  States,  are  reserved  to  the  States  respectively,  or  to  the  people." 


OF   THE    SCHOONER    SAVANNAH.  139 

I  refer  to  the  case  of  McCulloch  vs.  The  State  of  Maryland, 
4  Wheat  on,  j>.  400,  in  which  the  opinion  was  delivered  by 
Chief  Justice  Marshall.  He  says  : 

"  Xo  political  dreamer  was  ever  wild  enough  to  think  of  breaking  down 
the  lines  which  separate  the  States,  and  of  compounding  the  American  peo 
ple  into  one  common  mass." 

I  cite  particularly  from  pp.  402  and  410.  On  page  410  his 
language  is  as  follows  : 

"  In  America,  the  powers  of  sovereignty  are  divided  between  the  Govern 
ment  of  the  Union  and  those  of  the  States.  They  are  each  sovereign  with 
respect  to  the  objects  committed  to  it,  and  neither  sovereign  with  rexpect  to  the 
objtcts  committed  to  the  other.  We  cannot  comprehend  that  train  of  reason 
ing  which  would  maintain  that  the  extent  of  power  granted  by  the  people  is 
to  be  ascertained,  not  by  the  nature  and  terms  of  the  grant,  but  by  its  date. 
Some  State  constitutions  were  formed  before,  some  since,  that  of  the  United 
States.  We  cannot  believe  that  their  relation  to  each  other  is  in  any  degree 
dependent  upon  this  circumstance.  Their  respective  powers  must,  we  think, 
be  precisely  the  same  as  if  they  had  been  formed  at  the  same  time." 

The  next  I  refer  to  is  the  case  of  Rhode  Island  aust.  Mas- 
sae/iuseUS)  12  Peters,  88y,  where  Judge  Baldwin  says : 

"  Before  we  can  proceed  in  this  cause,  we  must,  therefore,  inquire  whether 
we  can  hear  and  determine  the  matters  in  controversy  between  the  parties, 
who  are  two  States  of  this  Union,  sovereign  within  their  respective  bounda 
ries,  save  that  portion  of  power  which  they  have  granted  to  the  Federal  Gov 
ernment,  and  foreign  to  each  other  for  all  but  federal  purposes" 

I  now  refer  to  the  case  of  Livingston  vs.  Van  Inyen,  9 
Johnson,  574,  where  Chancellor  Kent  reasons  thus  : 

"  When  the  people  create  a  single  entire  Government,  they  grant  at  once 
all  the  rights  of  sovereignty.  The  powers  granted  are  indefinite  and  incapa 
ble  of  enumeration.  Every  thing  is  granted  that  is  not  expressly  reserved  in 
the  constitutional  charter,  or  necessarily  retained  as  inherent  in  the  people. 
But  when  a  Federal  Government  is  erected  with  only  a  portion  of  the  sover 
eign  power,  the  rule  of  construction  is  directly  the  reverse,  and  every  poic<.  r  is 
reserved  to  the  members  that  is  not,  either  in  express  terms  or  by  necessary 
•implication,  taken  away  from  them  and  vested  exclusively  in  the  Ft<hr<d 
Head.'" 

"  This  rule  has  not  only  been  acknowledged  by  the  most  intelligent  friends 
to  the  Constitution,  but  is  plainly  declared  by  the  instrument  itself.  This 
principle  might  be  illustrated  by  other  instances  of  grants  of  power  to  Con 
gress,  with  a  prohibition  to  the  States  from  exercising  the  like  powers;  but 
it  becomes  unnecessary  to  enlarge  upon  so  plain  a  proposition,  as  it  is  re 
moved  beyond  all  doubt  by  the  10th  article  of  the  amendments  to  the  Con 
stitution.  That  article  declares  that  'the  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to 
the  States  respectively,  or  to  the  people.'  The  ratification  of  the  Constitu 
tion  by  the  Convention  of  this  State  was  made  with  the  explanation  and 
understanding  that  'every  power,  jurisdiction  and  right  which  was  not  clear 
ly  delegated  to  the  General  Government  remained  to  the  people  of  the  seve 
ral  States,  or  to  their  respective  State  governments.'  There  was  a  similar 
provision  in  the  articles  of  Confederation,  and  the  principle  results  from 


140  TRIAL    OF   THE    OFFICERS  AND    CREW 

the  ver}T  nature  of  the  Federal  Government,  which  consists  only  of  a  defined 
portion  of  the  undefined  mass  of  sovereignty  vested  in  the  several  mem 
bers  of  the  Union.  There  may  be  inconveniences,  but  generally  there  will 
be  no  serious  difficulty,  and  there  cannot  well  be  any  interruption  of  the  pub 
lic  peace  in  the  concurrent  exercise  of  those  powers.  The  powers  of  the  two 
Governments  are  each  wpreme  within  their  respective  constitutional  spheres. 
They  may  each  oj/erate  with  full  effect  upon  different  subjects,  or  they 
may,  as  in  the  case  of  taxation,  operate  upon  different  parts  of  the  same 
subject" 

I  now  refer  to  the  Massachusetts  Bill  of  Rights  of  1780, 
art.  4.  It  reads : 

"The  people  of  this  Commonwealth  have  the  sole  and  exclusive  right  of 
governing  themselves  as  a  free,  sovereign  and  independent  State ;  and  do, 
and  forever  hereafter  shall,  exercise  and  enjoy  every  power,  jurisdiction  and 
right,  which  is  not,  or  may  not  hereafter  be,  by  them  expressly  delegated  to 
the  United  States  of  America,  in  Congress  assembled." 

I  also  refer  to  the  New  Hampshire  Bill  of  Rights,  of  Sep 
tember,  1792 : 

"  ART.  7.  The  people  of  this  State  have  the  sole  and  exclusive  right  of 
governing  themselves  as  a  free,,  sovereign  and  independent  State,  and  do,  and 
forever  hereafter  shall,  exercise  and  enjoy  every  power,  jurisdiction  and  right 
pertaining  thereto,  which  is  not  or  may  not  hereafter  be  by  them  expressly 
delegated  to  the  United  States  of  America,  in  Congress  assembled." 

I  next  beg  leave  to  refer  your  honors  to  No.  32  of  the  Fed 
eralist,  by  Hamilton,  who  says  : 

"  An  entire  consolidation  of  the  States  into  one  complete  national  sover 
eignty  would  imply  an  entire  subordination  of  the  parts,  and  whatever 
power  might  remain  in  them  would  be  altogether  dependent  on  the  general 
will.  But  as  the  plan  of  the  Convention  aims  only  at  a  partial  union  or  con 
solidation,  the  State  governments  would  clearly  retain  all  the  rights  of  sov 
ereignty  which  they  before  had,  and  which  were  not  by  that  act  exclusively 
delegated  to  the  United  States." 

Also,  to  the  Federalist,  No.  39,  by  Madison,  in  which  he 

says : 

"The  difference  between  a  Federal  and  National  Government,  as  it  relates 
to  the  operation  of  the  Government,  is,  by  the  adversaries  of  the  plan  of  the 
Convention,  supposed  to  consist  in  this,  that  in  the  former  the  powers  oper 
ate  upon  the  political  bodies  composing  the  Confederacy  in  their  political 
capacities;  in  the  latter,  on  the  individual  citizens  composing  tlfe  nation  in 
their  individual  capacities.  On  trying  the  Constitution  by  this  criterion,  it 
falls  under  the  national  and  not  the  federal  character,  though  perhaps  not 
so  completely  as  has  been  understood.  In  several  cases,  and  particularly  in 
the  trial  of  controversies  to  which  States  may  be  parties,  they  must  be  viewed 
and  proceeded  against  in  their  collective  and  political  capacities  only.  But 
the  operation  of  the  Government  on  the  people  in  their  individual  capacities, 
in  its  ordinary  and  most  essential  proceedings,  will,  on  the  whole,  in  the  sense 
of  its  opponents,  designate  it,  in  this  relation,  a  National  Government. 

"  But  if  the  Government  he  national  with  regard  to  the  operation  of  its 
powers,  it  changes  its  aspect  wgain  when  we  contemplate  it  with  regard  to 
the  extent  of  its  powers.  The  idea  of  a  National  Government  involves  in  it 


OF   THE   SCHOONER    SAVANNAH.  141 

not  only  an  authority  over  the  individual  citizens,  but  an  indefinite  supremacy 
over  all  persons  and  things,  so  far  as  they  are  objects  of  lawful  government. 
Among  a  people  consolidated  into  one  nation,  this  supremacy  is  completely 
vested  in  the  National  Legislature.  Among  communities  united  for  political 
purposes,  it  is  vested  partly  in  the  general  and  partly  in  the  municipal  Legis 
latures.  In  the  former  case  all  local  authorities  are  subordinate  to  the 
supreme,  and  may  be  controlled,  directed  or  abolished  by  it  at  pleasure.  In 
the  latter  the  local  or  municipal  authorities  form  DISTINCT  AND  INDEPENDENT 
PORTIONS  OF  THE  SUPREMACY,  no  more  subject,  within  their  respective  spheres, 
to  the  general  authority,  than  the  general  authority  is  subject  to  them  within 
its  own  sphere.  In  this  relation,  then,  the  proposed  Government  cannot  be 
deemed  a  national  one,  since  its  jurisdiction  extends  to  certain  enumerated 
objects  only,  and  leaves  to  the  several  States  a  residuary  and  INVIOLABLE  sover 
eignty  over  all  other  objects.  It  is  true  that,  in  controversies  relating;  to  the 
boundary  line  between  the  two  jurisdictions,  the  tribunal  which  is  ultimately 
to  decide  is  to  be  established  under  the  General  Government.  But  this  does 
not  change  the  principle  of  the  case.  The  decision  is  to  be  impartially  made 
according  to  the  rules  of  the  Constitution ;  and  all  the  usual  and  most  effect 
ual  precautions  are  taken  to  secure  this  impartiality.  Some  such  tribunal  is 
clearly  essential  to  prevent  an  appeal  to  the  sword  and  a  dissolution  of  the 
compact ;  and  that  it  ought  to  be  established  under  the  general  rather  than 
the  local  Governments,  or,  to  speak  more  properly,  that  it  could  be  safely 
established  under  the  first  alone,  is  a  position  not  likely  to  be  combated." 

I  will  refer,  also,  to  the  letter  of  Gov.  Seward,  written  to 
Gov.  Gilmore.  of  Virginia,  October  24th,  1839,  taken  from  the 
Assembly  Journal,  63d  Sess.,  1840,  p.  55.  That  distinguished 
public  man  says : 

"You  very  justly  observe,  '  that  neither  the  Government  nor  the  citizens 
of  any  other  country  can  rightfully  interfere  with  the  municipal  regulations 
of  any  country  in  any  way  ; '  and  in  support  of  this  position  you  introduce 
the  following  extract  from  Vattel's  Law  of  Nations,  '  that  all  have  a  right  to 
be  governed  as  they  think  proper,  and  that  no  State  has  the  smallest  right  to 
interfere  in  the  government  of  another.  Of  all  the  rights  that  belong  to  a 
nation,  sovereignty  is  doubtless  the  most  precious,  and  that  which  other  na 
tions  ought  the  most  scrupulously  to  respect  if  they  would  not  do  her  an 
injury.' 

"It  might,  perhaps,  be  inferred,  from  the  earnestness  with  which  these 
principles  are  pressed  in  your  communication,  that  they  have  been  contro 
verted  on  my  part.  Permit  me,  therefore,  to  bring  again  before  you  the 
following  distinct  admissions:  4I  do  not  question  the  constitutional  right 
of  a  State  to  make  such  a  penal  code  as  it  shall  deem  necessary  or  expedient; 
nor  do  I  claim  that  citizens  of  other  States  shall  be  exempted  from  arrest,  trial 
and  punishment  in  the  State  adopting  such  code,  however  different  its  enact 
ments  may  be  from  those  existing  in  their  own  State.'  Thus  you  will  perceive 
that  I  have  admitted  the  sovereignty  of  the  several  States  upon  which  you  so 
strenuously  insist.  To  prevent,  however,  all  possible  misconstruction  upon 
this  subject,  I  beg  leave  to  add  that  no  person  can  maintain  more  firmly  than 
I  do  the  principle  that  the  States  are  sovereign  and  independent  in  regard  to 
all  matters  except  those  in  relation  to  \vhich  sovereignty  is  expressly,  or  by 
necessary  implication,  transferred  to  the  Federal  Government  by  the  Consti 
tution  of  the  United  States.  I  have  at  least  believed  that  my  non-compliance 
with  the  requisition  made  upon  me  in  the  present  case  would  be  regarded 
as  maintaining  the  equal  sovereignty  and  independence  of  this  State,  and  by 
necessary  consequence,  those  of  all  the  other  States." 


142  TRIAL   OF   THE   OFFICERS   AND   CREW 

I  contend,  then,  that  the  people  of  ihe  several  States,  in 
forming  the  State  governments,  have  surrendered  to  the  latter 
supreme  and  sovereign  jurisdiction  over  all  questions  affecting 
the  State,  or  its  citizens  as  a  body  politic,  not  included  in  the 
grant  of  power  to  the  General  Government  by  the  Federal 
Constitution.  This  surrender  necessarily  includes  the  power 
and  jurisdiction  to  determine,  co-ordinately  with  the  Federal 
Government,  whether  tiie  Federal  Executive  Government  is 
acting  within  or  transgressing  the  limits  of  its  legitimate  au 
thority  in  any  case  affecting  the  State  as  such,  or  its  cili/ens  as 
a  body  politic,  when  the  ques'ion  is  not  one  of  the  validity  or 
constitutionality  of  a  law  of  the  United  States,  operating  di 
rectly  upon  individual  citizens,  and  conformity  to  which  is  to 
be  enforced  or  resisted  by  suit  or  defence  in  the  Federal  or 
State  Courts,  with  the  right  of  ultimate  appeal,  in  either  case, 
to  the  Supreme  Court  of  the  United  States;  but,  on  the  con 
trary,  brings  into  collision  the  Federal  and  State  Executive 
Departments  of  the  Government,  in  the  exercise  of  powers 
which,  from  their  very  nature  and  the  mode  in  which  they  are 
exerted,  never  can  be  presented  for  the  determination  of  a 
Court. 

And  with  regard  to  that  proposition  I  would  cite  Vattel, 
Book  I.,  chap.  1,  sec.  2,  upon  the  proposition  that  jurisdiction 
to  determine  such  a  mixed  question  of  law  and  fact  has  been 
ceded  equally  to  the  State  as  to  the  Federal  Government.  Vat 
tel  says : 

11  It  is  evident  that,  by  the  very  act  of  the  civil  or  political  association, 
each  citizen  subjects  himself  to  the  authority  of  the  entire  body  in  every 
thing  that  relates  to  the  common  welfare.  The  authority  of  all  over  each 
member  therefore  essentially  belongs  to  the  body  politic  or  State;  but  the 
exercise  of  that  authority  may  be  placed  in  different  hands,  according  as  the 
society  may  have  ordained." 

1  refer,  also,  to  the  Federalist,  No.  40,  by  Madison.  lie 
uses  this  language : 

"Will  it  be  said  that  the  fundamental  principles  of  the  Confederation 
were  not  within  the  purview  of  the  Convention,  and  ought  not  to  have  been 
varied  ?  1  ask,  what  are  those  principles?  Do  they  require  that,  in  the  estab 
lishment  of  the  Constitution,  the  States  should  be  regarded  as  distinct  and 
independent  sovereigns?  They  are  so  regarded  by  the  Constitution  proposed. 
*  *  *  Do  they  require  that  the  powers  of  the  Government  should  act 
on  the  States,  and  not  immediately  on  individuals?  In  some  instances,  as 
has  been  shown,  the  powers  of  the  new  Government  will  act  on  the  States 
in  their  collective  character.  In  some  instances,  also,  those  of  the  existing 
Government  act  immediately  on  individuals.  In  cases  of  capture,  of  piracy, 
of  the  post-office,  of  coins,  weights  and  measures;  of  trade  with  the  Indians; 
of  claims  under  grants  of  land  by  different  States  ;  and,  above  all,  in  the  cases 
of  trial  by  Courts  Martial,  in  the  Army  and  Navy,  by  which  death  may  be 
inflicted  without  the  intervention  of  a  Jury,  or  even  of  a  Civil  Magistrate, — in 
all  th<jse  cases  the  powers  of  the  Confederation  operate  immediately  on  the 
persons  and  interests  of  individual  citizens." 


OF   THE    SCHOONER    SAVANNAH.  14:3 

I  would  also  refer  your  honors  t<>  the  "Report  of  the  Com 
mittee  of  the  General  Assembly  of  Connecticut,  on  a  call  for 
the  militia,  by  the  General  Government,  in  1812.  The  lie  port 
leads  : 

"  The  people  of  this  State  were  among  the  first  to  adopt  that  Constitu 
tion;  they  have  been  among  the  most  prompt  to  satisfy  all  its  lawful  demands, 
and  to  give  facility  to  its  fair  operations;  they  have  enjoyed  the  benefits  re 
sulting;  from  the  Union  of  the  States;  they  have  loved,  and  still  love  and 
cherish  that  Union,  and  will  deeply  regret  if  any  events  shall  occur  to  alienate 
their  affection  from  it.  They  have  a  deep  interest  in  its  preservation,  and 
are  still  disposed  to  yield  a  willing  and  prompt  obedience  to  all  the  legiti 
mate  requirements  of  the  Constitution  of  the  United  Spates. 

"But  it  must  not  be  forgotten  that  the  State  of  Connecticut  is  a  free, 
sovereign  and  independent  State,  —  that  the  United  States  are  a  Confederacy 
of  States,  —  that  we  are  a  confederated  and  not  a  consolidated  Republic.  The 
Governor  of  this  State  is  under  a  high  and  solemn  obligation  'to  maintain  the 
lawful  rights  and  privileges  thereof  as  a  sovereign,  free  and  independent 
State,'  as  he  is  '  to  support  the  Constitution  of  the  United  States,'  and  the 
obligation  to  support  the  latter  imposes  an  additional  obligation  to  support 
the  former.  The  building  cinnot  stand  if  the  pillars  upon  which  it  rests  are 
impaired  or  destroyed.  The  same  Constitution  which  delegates  powers  to 
the  General  Government,  forbids  the  exercise  of  powers  not  delegated,  and 
reserves  those  powers  to  the  States  respectively." 

And  that  was  u  approved  by  both  Houses/'  and  the  follow 
ing  i\  solution  passed  : 


That  the  conduct  ot  His  Excellency,  the  Governor,  in  refus 
ing  to  order  the  militia  of  this  State  into  the  service  of  the  United  States,  on 
the  requisition  of  the  Secretary  of  War  and  Major-General  Dearborn,  meets 
with  the  entire  approbation  of  this  Assembly." 

I  would  also  refer  to  the  second  speech  of  Mr.  Webster  on 
Mr.  Foot's  re  olution,  in  reply  to  Mr.  Hayne,  in  the  Senate  of 
the  United  States,  where  he  thus  expresses  himself: 

"  The  States  are  unquestionably  sovereign,  so  far  as  their  sovereignty  is 
not  affected  by  this  supreme  law  (the  Constitution).  *  *  *  The  Gen 
eral  Government  and  the  State  governments  derive  their  authority  from  the 
same  source.  Neither  can,  in  relation  to  the  other,  be  called  primary  ;  though 
one  is  definite  and  restricted,  and  the  other  general  and  residuary." 

Also,  to  the  ca^e  of  Luther  vs.  Borden,  7  Howard,  1  —  one 
of  the  Dorr  rebellion  cases.  The  Supreme  Court  of  the  United 
States  there  decided  that  the  government  of  a  State,  by  its 
Legislature,  has  the  power  to  protect  itself  from  destruction  by 
armed  rebellion  by  declaring  martial  law,  and  that  the  Legisla 
ture  is  the  judge  of  the  necessary  exigency. 

At  this  point  the  Court  intimated  that  they  would  adjourn 
to  the  following  day. 

The  DL-trict  Attorney,  Mr.E.  Del  afield  SmLh,  stated  that  the 
case  of  the  United  States  vs.  Willi<tm  Smith,  one  of  the  ship's 
company  of  the  privateer  Jefferson  Davis,  the  trial  of  which  had 


144  TRIAL   OF   THE   OFFICERS   AND   CREW 

been  proceeding  in  Philadelphia,  had  terminated  in  a  verdict. 
That  case  involved  the  main  questions,  and  also  the  question 
of  jurisdiction  involved  here.  Mr.  Smith  further  stated  that 
he  had  sent  for  a  copy  of  the  charge  of  Mr.  Justice  Grier  in 
that  case,  and  expected  to  receive  it  by  telegraph,  and  he  de 
sired  to  reserve  the  right  to  refer  to  that  charge  as  one  of  his 
authorities  in  this  case. 

The  Court  assented. 

Adjourned  to  Saturday,  October  26th,  at  11  A.  M. 


FOURTH   DAY. 

Saturday,  Oct.  26,  1861. 

The  Court  met  at  11  o'clock,  when — 
3fr.  Larocgue  resumed : 

I  will  proceed  very  briefly,  if  your  honors  please,  to  close 
what  1  was  submitting  to  the  Court  upon  the  propositions 
which,  as  I  maintain,  tend  to  show  a  colorable  authority  in  the 
State  government,  in  possible  cases  that  might  arise,  to  author 
ize  the  issuing  of  letters  of  marque.  I  will  state  them  in  their 
connection,  in  order  that  your  honors  may  see  what  they  are. 
The  first  is  the  one  I  considered  yesterday,  viz.,  that  the  Fed 
eral  Executive  Government  and  the  executive  governments 
of  the  States,  under  the  Constitution  of  the  United  States,  each 
possess  the  jurisdiction  to  decide  whether  their  respective  acts 
are  within  or  exceed  the  limits  of  their  respective  constitu 
tional  powers  in  cases  of  collision  between  them  in  their  ad 
ministrative  acts  operating  upon  the  public  domain,  or  upon 
the  State,  or  its  citizens  as  a  body  politic. 

I  had  concluded  what  1  intended  to  submit  upon  that,  and 
proceed  to  the  others,  which  are — 

2.  That  in  such  cases,  the  Constitution  having  erected  no 
common  arbiter  between  them,  the  right  of  forcible  re-istance 
to  the  exercise  of  unlawful  power,  which,  by  the  law  of  nature, 
resides  in  the  people,  has  been  delegated  by  them,  by  the  Fed 
eral  and  State  Constitutions  respectively,  to  the  Federal  and 
State  Governments  respectively,  and  each  having  the  jurisdic 
tion  to  judge  whether  its  acts  are  within  the  constitutional 
limit  of  its  own  powers,  has  also  necessarily  the  right  to  em 
ploy  force  in  their  assertion  or  defence,  if  needed. 

3.  That  in  such  cases  the  citizen  of  a  State  which,  in  its 
political  capacity,  has  come  into  forcible  collision   with  the 
Federal  Government,  owing  allegiance  to  both  within  the  lim 
its  of  their  respective  constitutional  powers,  and  each  possess- 


OF   THE    SCHOONER    SAVANNAH.  145 

ing  the  jurisdiction  to  determine  for  him  the  compound  ques 
tion  of  law  and  fact,  whether  the  constitutional  limit  of  those 
powers  has  been  exceeded  by  itself  or  the  other  in  the  partic 
ular  case,  is  protected  from  all  criminal  liability  for  any  act- 
done  by  him,  in  good  faith,  in  adhering  to  and  under  the  au 
thority  of  either  Government. 

I  wish  very  briefly  to  refer  your  honors  to  a  few  author 
ities,  which,  1  hold,  sustain  these  propositions.  I  say,  in  the 
tirst  place,  that  this  right  bears  no  analogy  whatever  to  the 
right,  once  claimed  and  most  successfully  refuted,  of  the  in 
habitants  of  a  State,  in  Convention,  to  decide  by  ordinance 
upon  the  imconstitutionality  of  a  law  of  the  Union,  and  to 
prevent  by  force  its  operation  within  the  limits  of  the  State, 
in  a  case  legitimately  falling  within  the  cognizance  of  the 
Courts.  The  claim  to  collect  duties  under  an  Act  of  Congress 
alleged  to  be  unconstitutional  was  strictly  an  instance  of  this 
latter  class.  The  citizen  from  whom  the  duties  were  claimed 
could  simply  refuse  to  pay,  and  thereby  refer  the  question  of 
constitutionality  of  the  law  to  the  judicial  tribunals  to  which 
it  properly  belonged,  and  which  must  necessarily  pass  upon 
the  question  before  the  duties  could  be  collected.  On  the 
other  hand,  the  claim  to  hold  or  retake  forts  or  other  public 
places  within  the  limits  of  a  State,  as  property  of  the  united 
States,  is  one  against  which,  if  unauthorized,  the  State  could 
not  by  possibility  defend  itself  through  the  agency  of  the  Courts. 

Now,  if  your  honors  please,  I  have  stated  most  distinctly, 
and  admitted  most  fully,  that,  in  whatever  cases  the  judicial 
power  of  the  United  States  extends  to,  it  is  supreme.  That  is 
to  say,  if  a  collision  takes  place  in  a  suit  in  a  State  Court  be 
tween  the  Federal  and  State  laws,  and  the  decision  of  the 
State  Court  is  against  the  right,  privilege,  or  exemption,  as  it 
is  called  in  the  judiciary  Act,  claimed  under  the  authority  of 
the  Union,  the  Supreme  Court  of  the  United  States  can  redress 
the  error.  But  I  am  now  speaking  of  that  class  of  cases  where 
the  judiciary  have  nothing  whatever  to  do,  and  in  which,  I 
contend,  the  Federal  and  State  authorities  are  each  supreme 
and  sovereign,  within  the  limits  of  their  respective  power,  and 
neither  has  any  right  or  authority  beyond  the  lines  which 
bound  their  respective  jurisdiction.  And,  if  your  honors 
plea-e,  I  refer  to  the  Inaugural  Address  of  Mr.  Lincoln,  not 
only  for  the  proposition  that  the  judicial  authority  has  nothing 
to  do  whatever  in  a  case  such  as  that  I  am  now  supposing,  but 
that,  even  in  cases  where  the  judiciary  is  competent  to  act,  its 
decisions  do  not  form  precedents,  do  not  form  rules  for  the 
government  of  the  co-ordinate  departments  of  the  Union,  in 
future  cases  of  State  policy,  and  that  the  executive  and  the  leg 
islative  departments  are  still  left  at  liberty  to  act  as  it  no  de- 
10 


f         TRIAL    OF   THE   OFFICERS    AND   CREW 

cision  had  been  made.  I  do  not  mean  to  be  understood  as 
acquiescing  in  that  claim  ;  I  consider  it  as  a  doctrine  infinitely 
more  dangerous  and  destructive  than  the  doctrine  of  constitu 
tional  secession  ;  but  it  comes  to  us  as  the  claim  set  up  on  the 
part  of  the  Pres'dent ;  and  if  that  is  at  all  correct,  there  is  an 
end  of  all  pretence  that  the  judiciary  is  competent  to  afford 
any  relief  or  protection  in  the  other  class  of  cases  referred  to. 
lie  sa\ s  : 

"  I  do  not  forget  the  position  assumed  by  some,  that  constitutional  ques 
tions  are  to  be  decided  by  the  Supreme  Court ;  nor  do  I  deny  that  such  deci 
sion  must  be  binding  in  any  case  upon  the  parties  to  a  suit,  while  they  are 
also  entitled  to  very  high  respect  and  consideration  in  all  parallel  cases  by 
all  other  departments  of  the  Government ;  and  while  it  is  obviously  possible 
that  such  decision  may  be  erroneous  in  any  given  case,  still  the  evil  effect 
following  it  being  limited  to  that  particular  case,  with  the  chances  that  it 
may  be  overruled,  and  never  become  a  precedent  for  other  cases,  can  better 
be  borne  than  could  the  evils  of  a  different  practice.  At  the  same  time  the 
candid  citizen  must  confess  that,  if  the  policy  of  the  Government  upon  the 
vital  questions  affecting  the  whole  people  is  to  be  irrevocably  fixed  by  the 
decisions  of  the  Supreme  Court,  the  instant  they  are  made  in  ordinary  litiga 
tions  between  parties  in  personal  actions,  the  people  will  have  ceased  to  be 
their  o*vn  masters,  having  to  that  extent  practically  resigned  the  Govern 
ment  into  the  hands  of  that  eminent  tribunal.  Nor  is  there,  in  this  view, 
any  assault  upon  the  Court  or  the  Judges.  It  is  a  duty  from  which  they 
may  not  shrink,  to  decide  cases  properly  brought  before  them,  and  it  is  no 
fault  of  theirs  if  others  seek  to  turn  their  decisions  to  political  purposes." 

I  have  not  the  document  at  this  moment ;  but  your  honors 
will  probably  bear  in  mind  that  the  Executive  also  lately  con 
sulted  the  law-officer  of  the  Government  upon  the  question  of 
suspending  the  privilege  ot  habeas  corpus,  and  I  well  remem 
ber  the  clause  in  the  opinion  which  was  delivered  by  that  emi 
nent  lei'al  gentleman  and  high  officer  of  the  Government  on 
that  occasion,  and  which  was  afterwards  communicated  by  the 
President  to  Congress  as  the  basis  of  his  action.  In  that  opin- 
on  the  present  learned  Attorney-General  used  this  language  : 
'•  To  say  that  the  departments  of  our  Government  are  co-ordi 
nate,  is  to  say  that  the  judgment  of  one  of  them  is  riot  binding 
upon  the  other  two.  as  to  the  arguments  and  principles  involved 
in  the  judgment.  It  binds  only  the  parties  to  the  case  decided." 
And  your  honors  will  recollect  that,  acting  upon  that  enuncia 
tion  of  the  law  of  the  land  and  of  the  construetion  of  the  Con 
stitution,  although  he  admitted  that  the  Supreme  Court  of  the 
United  States  had  decided  that  the  privilege  of  habeas  corpus 
could  not  be  suspended  by  the  Executive,  without  the  interpo 
sition  of  Congress,  the  legal  adviser  of  the  Government  held, 
at  the  same  time,  that  that  decision  of  the  Supreme  Court  was 
not  binding  upon  the  Executive. 

Now,  for  the  purpose  of  showing  what  I  mean  by  the  right 
of  resistance  reserved  to  the  people  by  the  law  of  nature,  which, 


OF   THE    SCHOONER    SAVANNAH.  14:7 

as  I  say,  is  delegated  by  them  to  these  two  sovereigns,  for  the 
purpose  that  each  may  maintain  its  own  authority  and  pre 
vent  encroachment  by  the  other,  I  beg  to  refer  your  honors 
to  Rutherfortlix  Institutes  of  Natural  Law,  vol.  1,  page  391, 
commencing  with  section  10.  And  as  a  proof  that  I  broach 
no  novel  or  revolutionary  doctrine,  your  honors  will  bear  in 
rnind  that  these  Institutes  of  Natural  Law  were  a  course  of 
lectures  delivered  in  one  of  the  great  seminaries  of  learning  of 
England,  and  their  doctrines  thought  fit  mid  proper  to  be  in 
stilled  into  the  minds  of  the  youth  of  that  Kingdom,  the  loyalty 
of  whose  people  to  their  Government  has  become  proverbial 
among  all  the  nations  of  the  world. 
The  author  says : 

"It  is  a  question  of  some  importance,  and  has  been  thought  a  question 
not  easily  to  be  determined,  whether  the  members  of  a  civil  society  have, 
upon  any  event,  or  in  any  circumstances  whatsoever,  a  right  to  resist  their 
governors,  or  rather  the  persons  who  are  invested  with  the  civil  power  of 
that  society." 

Then  he  states  several  cases  in  which  the  civil  governors,  as- 
he  calls  them,  lose  their  power  over  their  subjects,  and  con 
tinues  : 

"  Fourthly,  Though  the  governors  of  a  society  should  be  invested  by  the 
constitution  with  all  civil  power  in  the  highest  degree  and  to  the  greatest 
extent  that  the  nature  of  a  civil  power  will  admit  of,  yet  this  does  not  imply 
that  the  people  are  in  a  state  of  perfect  subjection.  Civil  power  is,  in  its  own 
nature,  a  limited  power ;  as  it  arose  at  first  from  social  union,  so  it  is  limited 
by  the  ends  and  purposes  of  such  union,  whether  it  is  exercised,  as  it  is  in 
democracies,  by  the  body  of  the  people,  or,  as  it  is  in  monarchies,  by  one 
single  person.  But  if  the  power  of  a  Monarch,  when  he  is  considered  as  a 
civil  governor,  is  thus  limited  by  the  ends  of  social  union,  whatever  obedience 
and  submission  the  people  may  owe  him  whilst  he  keeps  within  these  limits, 
he  has  no  power  at  all,  and  consequently  the  people  owe  him  no  subjection, 
when  he  goes  beyond  them. 

"  Having  thus  taken  a  short  view  of  the  several  ways  in  which  the  author 
ity  of  the  governors  of  a  society  fails,  and  the  subjection  of  the  people  ceases, 
we  may  now  return  to  the  question  which  was  before  us. 

u  If  you  ask  whether  the  members  of  a  civil  society  have  a  right  to  resist 
the  civil  governors  of  it  by  force?  your  question  is  too  general  to  admit  of  a 
determinate  answer. 

"  As  far  as  the  just  authority  of  the  civil  governors  and  the  subjection  of 
the  people  extend,  resistance  by  force  is  rebellion. 

"Subjection  consists  in  an  obligation  to  obey;  as  far,  therefore,  as  the 
people  are  in  subjection,  they  can  have  no  right  to  resist;  because  an  obliga 
tion  to  obey,  and  a  right  to  resist,  are  inconsistent  with  one  another. 

u  But  the  power  of  civil  governors  is  neither  necessarily  connected  with 
their  persons,  nor  infinite  whilst  it  is  in  their  possession. 

41  It  ceases  by  abdication ;  it  is  overruled  by  the  laws  of  nature  and  of 
God ;  and  it  does  not  extend  beyond  the  limits  which  either  the  civil  consti 
tution  or  the  ends  of  social  union  have  set  to  it. 

"  Where  their  power  thus  fails  in  right,  and  they  have  no  just  authority, 
the  subjection  of  the  people  ceases;  that  is,  as  far  as  of  right  they  have  no 
power,  or  no  just  authority,  the  people  are  not  obliged  to  obey  them;  so  that 
any  force  which  they  make  use  of,  either  to  compel  obedience  or  to  punish 


148  TRIAL    OF   THE    OFFICERS   AND   CREW 

disobedience,  is  unjust  force;  the  people  may  perhaps  be  at  liberty  to  submit 
to  it,  if  they  please ;  but,  because  it  is  unjust  force,  the  law  of  nature  does  not 
©blige  them  to  submit  to  it. 

"  But  this  law,  if  it  does  not  oblige  the  people  to  submit  to  such  force, 
allows  them  to  have  recourse  to  the  necessary  means  of  relieving  themselves 
from  it,  and  of  securing  themselves  against  it,  to  the  means  of  resistance  by 
opposing  force  to  force,  if  they  cannot  be  relieved  from  it  and  secured  against 
it  by  any  other  means." 

I  continue  my  citation  at — 

"Sec.  XV.  In  the  general  questions  concerning  the  right  of  resistance,  it 
is  usually  objected  that  there  is  no  common  judge  who  is  vested  with  author 
ity  to  determine,  between  the  supreme  governors  and  the  people,  where  the 
right  of  resistance  begins;  and  the  want  of  such  a  judge  is  supposed  to  leave 
the  people  room  to  abuse  this  right ;  they  may  possibly  pretend  that  they  are 
unjustly  oppressed,  and,  upon  this  pretence,  may  causelessly  and  rebelliously 
take  up  arms  against  their  governors,  although  they  are  laid  under  no  other 
restraints,  and  no  other  compulsion  is  made  use  of,  but  what  the  general 
nature  of  civil  society  or  the  particular  circumstances  of  their  own  society 
require. 

"  But,  be  this  as  it  may,  the  possibility  that  the  right  may  be  abused,  does 
not  prove  that  no  such  right  subsists. 

"If  we  would  conclude,  on  the  one  hand,  that  the  people  have  no  right 
ef  resistance,  because  this  right  is  capable  of  being  abused,  we  might,  for  the 
same  reason,  conclude,  on  the  other  hand,  that  supreme  governors  have  no 
authority. 

"  Whatever  authority  these  governors  have  in  any  civil  society,  it  was 
given  them  for  the  common  benefit  of  the  society ;  and  it  is  possible  that,  un 
der  the  color  of  this  authority,  they  may  oppress  the  people  in  order  to  pro 
mote  their  own  separate  benefit. 

"  Sec.  XVI.  It  is  a  groundless  suggestion,  that  a  right  of  resistance  in 
the  people  wrill  occasion  treason  and  rebellion,  and  that  it  will  weaken  the 
authority  of  civil  government,  and  will  render  the  office  of  those  who  are  in 
vested  with  it  precarious  and  unsafe,  evi-n  though  they  administer  it  with  the 
utmost  prudence  and  with  all  due  regard  to  the  common  benefit. 

"The  right  of  resistance  will  indeed  render  the  general  notion  of  rebellion 
less  extensive  in  its  application  to  particular  facts. 

"All  use  of  force  against  such  persons  as  are  invested  with  supreme 
power,  would  come  under  the  notion  of  rebellion,  if  the  people  have  no  right 
of  this  sort;  whereas,  if  they  have  such  a  right,  the  use  of  force  to  repel  ty- 
ranical  and  unsocial  oppression,  when  it  cannot  be  removed  by  any  other 
means,  must  have  some  other  name  given  to  it.  So  tliat,  however  true  it  may 
be  that,  in  consequence  of  this  right  of  resistance,  supreme  government  will 
be  liable,  of  right,  to  some  external  checks,  arising  out  of  the  law  of  nature, 
to  which  they  would  otherwise  not  be  liable,  yet  it  cannot  properly  be  said 
to  expose  them  to  rebellion." 

I  beg,  in  the  next  place,  to  read  to  your  honors,  from  the  opin 
ion  of  Mr.  Justice  Johnson,  a  short  paragraph.  It  is  to  be  found 
in  1st  Wheaton,  363,  in  the  case  of  Martin  vs.  Hunters  Lessee. 
I  believe  a  paragraph  from  that  has  been  already  read,  on  the 
other  side,  and  I  wish  to  give  you,  in  connection  with  it,  what 
he  says,  speaking  of  the  power  of  the  judiciary,  and  the  coi^e- 
quences  that  would  result  in  any  case  to  which  that  power  did 
not  reach.  He  says  : 


OF   THE   SCHOONER    SAVANNAH.  149 

"  On  the  other  hand,  so  firmly  am  I  persuaded  that  the  American  people 
no  longer  can  enjoy  the  blessings  of  a  free  Government,  whenever  the  State 
sovereignties  shall  be  prostrated  at  the  feet  of  the  General  Government,  nor 
the  proud  consciousness  of  equality  and  security,  any  longer  than  the  inde 
pendence  of  judicial  power  shall  be  maintained  consecrated  and  intangible, 
that  I  could  borrow  the  language  of  a  celebrated  orator,  and  exclaim,  '  I  re 
joice  that  Virginia  has  resisted.'  " 

I  also  wish  to  read  a  sentence  from  the  case  of  Moore  vs. 
The  State  of  Illinois,  in  14  Howard,  p.  20 — the  opinion  by  Mr. 
Justice  Grier.  He  says: 

"Every  citizen  of  the  United  States  is  also  a  citizen  of  a  State  or  Territory. 
He  may  be  said  to  owe  allegiance  to  two  sovereigns,  and  may  be  liable  to 
punishment  for  an  infraction  of  the  laws  of  either." 

And  Mr.  Justice  McLean,  in  speaking  of  the  same  subject, 
in  the  same  case,  at  pa^e  22,  says : 

*•  It  is  true  the  criminal  laws  of  the  Federal  and  State  Governments  ema 
nated  from  different  sovereignties ;  but  they  operate  on  the  same  people,  and 
should  have  the  same  end  in  view.  In  this  respect  the  Federal  Government, 
though  sovereign  within  the  limitation  of  its  powers,  may,  in  some  sense,  be 
considered  as  the  agent  of  the  States,  to  provide  for  the  general  welfare  by 
punishing  offences  under  its  own  laws  within  its  jurisdiction." 

I  wish  also  to  refer  to  the  case  of  the  United  States  vs.  Booth, 
in  21  Howard — the  opinion  of  CHIKF  JUSTICE  TANEY — in  con 
nection  with  the  question  of  what  the  result  is  where  the 
judiciary  has  not  power  to  ac^.  He  says  : 

"  The  importance  which  the  framers  of  the  Constitution  attached  to  such 
a  tribunal,  for  the  purpose  of  preserving  internal  tranquillity,  is  strikingly 
manifested  by  the  clause  which  gives  this  Court  jurisdiction  over  the  sovereign 
States  which  compose  this  Union,  when  a  controversy  arises  between  them. 
Instead  of  reserving  the  right  to  seek  redress  for  injustice  from  another  State 
by  their  sovereign  powers,  they  have  bound  themselves  to  submit  to  the 
decision  of  this  Court,  and  to  abide  by  its  judgment  And  it  is  not  out  of 
place  to  say,  here,  that  experience  has  demonstrated  that  this  power  was  not 
unwisely  surrendered  by  the  States;  for,  in  the  time  that  has  already  elapsed 
since  this  Government  came  into  existence,  several  irritating  and  angry  con 
troversies  have  taken  place  between  adjoining  States,  in  relation  to  their 
respective  boundaries,  and  which  have  sometimes  threatened  to  end  in  force 
and  violence,  but  for  the  power  vested  in  this  Court  to  hear  them  and  decide 
between  them. 

"The  same  purposes  are  clearly  indicated  by  the  different  language  em 
ployed  when  conferring  supremacy  upon  the  laws  of  the  United  States  and 
jurisdiction  upon  its  Courts.  In  the  first  case,  it  provides  that  'this  Consti 
tution,  and  the  laws  of  the  United  States,  which  shall  be  made  in  pursuance 
thereof,  shall  be  the  supreme  law  of  the  land,  and  obligatory  upon  the  Judges 
in  every  State.'  The  words  in  italics  show  the  precision  and  foresight  which 
marks  every  clause  in  the  instrument.  The  sovereignty  to  be  created  was  to 
be  limited  in  its  powers  of  legislation  ;  and,  if  it  passed  a  law  not  authorized 
by  its  enumerated  powers,  it  was  not  to  be  regarded  as  the  supreme  law  of 
the  land,  nor  were  the  State  Judges  bound  to  carry  it  into  execution." 

An;l  further  on,  speaking  of  the  claimed  right  of  the  State 


150  TRIAL   OF   THE   OFFICERS   AND   CREW 

of  Wisconsin  to  discharge  a  piisoner  convicted  in  tlie  United 
States  Court  upon  a  criminal  conviction,  and  to  refuse  after 
wards  to  obey  a  writ  of  error  issued  out  of  the  Supreme  Court 
of  the  United  States  to  review  that  judgment,  he  uses  language 
of  this  kind : 

"  This  right  to  inquire  by  process  of  habeas  corpus,  and  the  duty  of  the 
officer  to  make  a  return,  grows  necessarily  out  of  the  complex  character  of 
our  Government,  and  the  existence  of  two  distinct  and  separate  sovereignties 
within  the  same  territorial  space,  each  of  them  restricted  in  its  powers,  and 
each,  within  its  sphere  of  action  prescribed  by  the  Constitution  of  the  United 
States,  independent  of  the  other." 

Now,  if  your  honors  please,  upon  that  question  still  fur 
ther — that  where  there  is  no  possibility  of  the  power  of  the  judi 
ciary  being  exercised,  there  being,  as  the  learned  Chief  Justice 
expresses  it  in  his  own  language,  "two  distinct  and  separate 
sovereignties  within  the  same  territorial  space"  exercising 
jurisdiction,  the  right  of  forcible  resistance  exists  in  the  State 
governments.  I  beg  to  refer  to  the  Federalist,  No.  28,  by 
Alexander  Hamilton,  p.  12(5.  He  says: 

"  It  may  safely  be  received  as  an  axiom  in  our  political  system,  that  the 
State  governments  will  in  all  possible  contingencies  afford  complete  security 
against  invasions  of  the  public  liberty  by  the  federal  authority.  Projects  of 
usurpation  cannot  be  masked  under  pretences  so  likely  to  escape  the  pene 
tration  of  select  bodies  of  men  as  of  the  people  at  large.  The  Legislatures 
will  have  better  means  of  information ;  they  can  discover  the  danger  at  a 
distance,  and,  possessing  all  the  organs  of  civil  power  and  the  confidence  of 
the  people,  they  can  at  once  adopt  a  regular  plan  of  opposition;  they  can 
combine  all  the  resources  of  the  community.  They  can  readily  communicate 
with  each  other  in  the  different  States,  and  unite  their  common  forces  for 
the  protection  of  their  common  liberty." 

I  refer  also  to  the  Federalist,  No.  46,  by  James  Madison, 
where  he  uses  this  language : 

"  W.ere  it  admitted,  however,  that  the  Federal  Government  may  feel  an 
equal  disposition  with  the  State  governments  to  extend  its  power  beyond 
the  due  limits,  the  latter  would  still  have  the  advantage  in  the  means  of  de 
feating  such  encroachments.  If  the  act  of  a  particular  State,  though 
unfriendly  to  the  National  Government,  be  generally  popular  in  that  State, 
and  should  not  too  grossly  violate  the  oaths  of  the  State  officers,  it  is  executed 
immediately,  and  of  course  by  means  on  the  spot,  and  depending  on  the 
State  alone.  *  *  *  On  the  other  hand,  should  an  unwarrantable  meas 
ure  of  the  Federal  Government  be  unpopular  in  particular  States,  which 
would  seldom  fail  to  be  the  case,  or  even  a  warrantable  measure  be  so,  which 
may  sometimes  be  the  case,  the  means  of  opposition  to  it  are  at  hand.  *  *  * 

"  But  ambitious  encroachments  of  the  Federal  Government  on  the  author 
ity  of  the  State  governments  would  not  excite  the  opposition  of  a  single 
State,  or  of  a  few  States  only.  They  would  be  signals  of  general  alarm. 
Every  government  would  espouse  the  common  cause ;  a  correspondence 
would  be  opened ;  plans  of  resistance  would  be  concerted ;  one  spirit  would 
animate  and  conduct  the  whole.  The  same  combination,  in  short,  would 
result  from  an  apprehension  of  the  federal  as  was  produced  by  the  dread  of 


OF   THE    SCHOONER    SAVANNAH.  151 

a  foreign  yoke;  and,  unless  the  projected  innovations  should  be  voluntarily 
renounced,  the  same  appeal  to  a  trial  of  force  would  be  made  in  the  one  case 
as  was  made  in  the  other.  But  what  degree  of  madness  would  ever  drive 
the  Federal  Government  to  such  an  extremity  ?  But  what  would 

be  the  contest  in  the  case  we  are  supposing?  Who  would  be  the  parties? 
A  few  Representatives  of  the  people  would  be  opposed  to  the  people  them 
selves;  or,  rather,  one  set  of  Representatives  would  be  contending  against 
thirteen  sets  of  Representatives,  with  the  whole  body  of  their  common  constit 
uents  on  the  side  of  the  latter.  The  only  refuge  left  for  those  who  prophesy 
the  downfall  of  the  State  governments  is  the  visionary  supposition  that  the 
Federal  Government  may  previously  accumulate  a  military  force  for  the  pro 
jects  of  ambition.  *  *  *  Extravagant  as  the  supposition  is,  let  it,  how 
ever,  be  made.  Let  a  regular  army,  fully  equal  to  the  resources  of  the 
country,  be  formed,  and  let  it  be  entirely  at  the  devotion  of  the  Federal  Gov 
ernment;  still  it  would  not  be  going  too  f?r  to  say  that  the  State  govern 
ments,  with  the  people  on  their  side,  would  be  able  to  repel  the  danger. 
The  highest  number  to  which,  according  to  the  best  computation,  a  standing 
army  can  be  carried  in  any  country,  does  not  exceed  y^th  of  the  whole  num 
ber  of  souls,  or  o^th  part  of  the  number  able  to  bear  arms.  This  proportion 
would  not  yield  "to  the  United  States  an  army  of  more  than  25  or  30,000 
men.  To  these  would  be  opposed  a  militia  amounting  to  near  500,000  citi 
zens,  with  arms  in  their  hands,  officered  by  men  chosen  from  among  them 
selves,  fighting  for  their  common  liberties,  and  united  and  conducted  BY 
GOVERNMENTS  possessing  their  affections  and  confidence." 

I  shall  not  spend  the  time  of  your  honors  by  reading  the 
Virginia  and  Kentucky  resolutions — the  one  the  production  of 
James  Madison,  and  the  other  of  Thomas  Jefferson — with 
which  vou  are  so  familiar.  They  fully  bear  out  the  doctrine 
for  which  I  contend,  and  much  more  than  I  contend  for.  I  wish, 
however,  to  read,  from  the  American  State  Papers,  vol.  21,  p. 
<?,  a  series  of  resolutions  adopted  by  the  Legislature  of  Penn 
sylvania,  on  the  3d  April,  1809,  They  are  as  follows : 

"Resolved,  by  the  Senate  and  House  of  Representatives  of  the  Common 
wealth  of  Pennsylvania: 

"That,  as  a  member  of  the  Federal  Union,  the  Legislature  of  Pennsylva 
nia  acknowledges  the  supremacy,  and  will  cheerfully  submit  to  the  authority, 
of  the  General  Government,  as  far  as  that  authoritv  is  delegated  by  the  Con 
stitution  of  the  United  States.  But  while  they  yield  to  this  authority,  when 
exerted  within  constitutional  limits,  they  trust  they  will  not  be  considered 
as  acting  hostile  to  the  General  Government  ichen,  as  the  guardians  of  the 
State  rights,  they  cannot  permit  an  infringement  of  those  rights  by  an  uncon 
stitutional  exercise  of  power  in  the  United  States  Courts. 

"fiewlceJ,  That  in  a  Government  like  that  of  the  United  States,  where 
there  are  powers  granted  to  the  General  Government  and  rights  reserved 
to  the  States,  it  is  impossible,  from  the  imperfection  of  language,  so  to  define 
the  limits  of  each  that  difficulties  should  not  sometimes  arise  from  a  collision 
of  powers;  and  it  is  to  be  lamented  that  no  provision  is  made  in  the  Consti 
tution  for  determining  disputes  between  the  General  and  State  Governments 
by  an  impartial  tribunal,  when  such  cases  occur. 

"  Resolved,  That,  from  the  construction  which  the  United  States  Courts 
give  to  their  powers,  the  harmony  of  the  States,  if  they  resist  the  encroach 
ments  on  their  rights,  will  frequently  be  interrupted  ;  and  if,  to  prevent  this 
evil,  they  should  on  all  occasions  yield  to  stretches  of  power,  the  reserved 
rights  of  the  States  will  depend  on  the  arbitrary  powers  of  the  Courts. 


152  TRIAL    OF   THE   OFFICERS   AND   CEEW 

"  Resolved,  That  should  the  independence  of  the  States,  as  secured  by  the 
Constitution,  be  destroyed,  the  liberties  of  the  people  in  so  extensive  a  coun 
try  cannot  long  survive.  To  suffer  the  United  States  Courts  to  decide  on 
State  rights,  will,  from  a  bias  in  favor  of  power,  necessarily  destroy  the  federal 
part  of  our  Government;  and,  whenever  the  Government  of  the  United  States 
becomes  consolidated  we  may  learn  from  the  history  of  nations  what  will 
be  the  event." 

To  prevent  the  balance  between  the  General  and  State 
Governments  from  being  destroyed,  and  the  harmony  of  the 
States  from  being  interrupted — 

"  Bcsolved,  That  our  Senators  in  Congress  be  instructed,  and  our  Repre 
sentatives  be  requested,  to  use  their  influence  to  procure  amendment  to  the 
Constitution  of  the  United  States,  that  an  impartial  tribunal  may  be  estab 
lished  to  determine  disputes  between  the  General  and  State  Governments; 
and  that  they  be  further  instructed  to  use  their  endeavors  that,  in  the  mean 
time,  such  engagements  may  be  made  between  the  Governments  of  the  Union 
and  of  the  State  as  will  put  an  end  to  existing  difficulties." 

Those  resolutions  were  transmitted  to  Congress  by  Presi- 
sident  Madison.  They  were  never  acted  upon. 

My  next  reference  is  to  the  Remonstrance  of  the  State  of 
Massachusetts  against  the  War  of  1812,  adopted  June  18th, 
1813 — from  the  American  State  Papers,  vol.  21,  page  21U  : 

"The  Legislature  of  Massachusetts,  deeply  impressed  with  the  sufferings 
of  their  constituents,  and  excited  by  the  apprehension  of  still  greater  evils  in 
prospect,  feel  impelled  by  a  solemn  sense  of  duty  to  lay  before  the  National 
Government  their  views  of  the  public  interests,  and  to  express,  with  the 
plainness  of  freemen,  the  sentiments  of  the  people  of  this  ancient  and  exten 
sive  Commonwealth. 

"Although  the  precise  limits  of  the  powers  reserved  to  the  several  State 
sovereignties  have  not  been  defined  by  the  Constitution,  yet  we  fully  concur 
in  the  correctness  of  the  opinions  advanced  by  our  venerable  Chief  Magistrate, 
that  'our  Constitution  secures  to  us  the  freedom  of  speech,  and  that,  at  this 
momentous  period,  it  is  our  right  and  duty  to  inquire  into  the  grounds  and 
origin  of  the  present  war,  to  reflect  upon  the  state  of  public  affairs,  and  to 
express  our  sentiments  concerning  them  with  decency  and  frankness,  and  to 
endeavor,  so  far  as  our  limited  influence  extends,  to  promote,  by  temperate 
and  constitutional  means,  an  honorable  reconciliation.  *  The 

States,  as  well  as  the  inttirMimls  composing  them,  are  parties  to  the  National 
Compact;  and  it  is  their  peculiar  duty,  especially  in  times  of  peril,  to  icatch 
over  the  rights  and  guard  the  privileges  solemnly  guaranteed  by  that  instru 
ment:' 

There  were  also  a  set  of  resolutions,  which  I  will  not  take 
time  to  read,  passed  by  the  Legislature  of  New  Jersey,  Novem 
ber  27th,  1827,  which  will  be  found  in  the  American  State 
Papers,  vol.  21,  page  7^7.  They  were  based  upon  the  then 
prevalent  opinion  that  the  Constitution  had  n<»t  conferred  upon 
the  Supreme  Court  of  the  United  States  the  power  to  decide 
disputed  questions  of  boundary,  or  similar  questions,  between 
States  of  the  Union,  and  proposed  an  amendment  to  remedy 
that  difficulty,  expressly  recognizing  that  the  right  to  resort  to 


OF   THE    SCHOONER   SAVANNAH.  153 

force  in  such  cases  necessarily  resulted  from  the  omission. 
The  decision  of  the  Supreme  C«>urt,  in  the  case  of  Rhode  Island 
vs.  Massachusetts  >  that  it  possessed  that  jurisdiction,  conjured 
that  danger.  The  greater  one,  however,  of  there  being  no  tribunal 
to  administer  justice  between  the  federal  and  State  sover 
eignties,  remains. 

I  will  also  refer  to  one  other  resolution,  passed  by  the 
Legislature  of  the  State  of  New  York,  on  the  29th  January, 
1833,  upon  the  Nullification  Ordinances,  as  they  were  called : 

"Resolved,  That  we  regard  the  right  of  a  single  State  to  make  void 
within  its  limits  the  laws  of  the  United  States,  as  set  forth  in  the  Ordinance 
of  South  Carolina,  as  wholly  unauthorized  by  the  Constitution  of  the  United 
States,  and,  in  its  tendency,  subversive  to  the  Union  and  the  Government 
thereof." 

I  do  not  know  that  any  sane  man  will  now  dispute  that 
truth  ;  but  this  follows.  The  present  Secretary  of  State  of  the 
United  States,  at  that  time  a  member  of  the  Senate  of  this  State, 
then  moved : 

"  That  this  Legislature  do  adhere,  in  their  construction  of  the  Constitution, 
to  the  principle  that  the  reserved  rights  of  the  States,  not  conceded  to  the 
General  Government,  ought  to  be  maintained  and  defended." 

This  latter  resolution  was  indefinitely  postponed. 

I  will  not  now  stop  to  read  what  was  said  by  President 
Buchanan,  in  his  Message  to  Congress,  on  December  4th, 
1860,  as  to  the  consequences  of  a  refusal  by  the  States  to  repeal 
the  obnoxious  laws  which  had  been  enacted.  You  will  recol 
lect  that  he  said  that,  if  that  was  not  done,  the  injured  States 
would  be  justified,  standing  on  the  basis  of  the  Constitution,  in 
revolutionary  resistance  to  tlie  Government  of  the  Union.  I 
do  not  need  to  claim  that,  for  I  have  nothing  to  do,  on  this  trial, 
with  the  justice  of  these  mighty  questions,  debated  between  the 
General  Government  and  the  governments  and  people  of  these 
States.  The  question  of  their  justice  or  injustice  does  not  arise 
upon  this  trial.  I  was  simply  making  these  citations  to  show 
that,  by  the  ablest  writers  cotemporaneous  with  the  Constitu 
tion,  and  who  performed  the  work  of  framing  it — by  the  pro 
ceedings  of  legislative  bodies  and  the  decisions  of  the  Supreme 
Court — the  principle  has  been  recognized  that,  in  all  cases  in 
which  jurisdiction  has  not  been  given  to  the  judiciary  over 
questions  between  the  General  Government  and  the  State,  they 
are  equal,  co-ordinate,  each  possessed  of  the  right  to  decide 
for  itself  as  to  the  excess  by  the  other,  if  it  is  claimed  that  there 
is  an  excess  of  constitutional  power,  and  to  assert  its  own  right 
or  repel  the  encroachments  of  the  other  by  force. 

I  say,  in  further  confirmation  of  this,  that  the  offence  of 
treason  against  the  United  States,  under  the  3d  section  of  the 


154:  TRIAL   OF   THE   OFFICERS   AND   CREW 

3d  article  of  the  Constitution  of  the  United  States,  must  be  a 
levying  of  war  against  them  all.  The  words,  "United  States," 
in  that  section,  mean  the  States,  and  not  merely  the  Govern 
ment  of  the  Union.  This  is  evident  from  the  fact  that  the  sec 
tion,  as  originall  v  reported  (being  sec.  2  of  art.  7),  read :  '*  Trea 
son  against  the  United  States  shall  consist  only  in  levying  war 
against  the  United  States,  OR  ANY  OF  THEM  ;  and  in  adhering  to 
the  enemies  of  the  United  States,  OR  ANY  OF  THEM,"  &c.  (Jour 
nal  of  the  Convention,  page  221).  It  was  amended  so  as  to 
read  collectively  only,  and  not  disjunctively.  When,  however, 
the  act  done  is  not  under  authority  of  a  State,  I  concede  that 
levying  war  against  the  General  Government  is  levying  war 
against  all  the  States. 

And,  in  this  connection,  I  wish  to  refer  to  the  proceedings, 
which  I  have  hastily  adverted  to  in  opening  to  the  Jury,  upon 
the  adoption  of  the  section  of  the  Constitution  relating  to  trea 
son.  1  refer  to  the  Madison  Papers ',  vol.  3,  page  1370  : 

"  Art.  7,  sec.  2,  concerning  treason,  was  then  taken  up. 

14  Mr.  Gouverneur  Morris  was  for  giving  to  the  Union  an  exclusive  right 
to  declare  what  should  be  treason.  In  case  of  a  contest  between  the  United 
States  and  a  particular  State,  the  people  of  the  latter  must,  under  the  disjunc 
tive  terms  of  the  clause,  be  traitors  to  one  or  other  authority. 

"  Dr.  Johnson  contended  that  treason  could  not  be  both  against  the  United 
States  and  individual  States,  being  an  offence  against  the  sovereignty,  which 
can  be  but  one  in  the  same  community. 

11  Mr.  Madison  remarked  that  as  the  definition  here  was  of  treason  against 
the  United  States,  it  would  seem  that  the  individual  States  would  be  left  in 
possession  of  a  concurrent  power,  so  far  as  to  define  and  punish  treason  par 
ticularly  against  themselves,  which  might  involve  double  punishment." 

The  words,  "  or  any  of  them,"  were  here  stricken  out  by  a 
vote. 

"  Mr.  Madison :  This  has  not  removed  the  difficulty.  The  same  act 
might  be  treason  against  the  United  States,  as  here  defined,  and  against  a 
particular  State,  according  to  its  laws. 

"  Dr.  Johnson  was  still  of  opinion  there  could  be  no  treason  against  a  par 
ticular  State.  It  could  not,  even  at  present,  as  the  Confederation  now  stands — 
the  sovereignty  being  in  the  Union  ;  much  less  can  it  be  under  the  proposed 
system. 

"  Colonel  Mason :  The  United  States  will  hate  a  qualified  sovereignty  only. 
The  individual  States  will  retain  a  part  of  the  sovereignty.  An  act  may  be 
treason  against  a  particular  State,  which  is  not  so  against  the  United  States. 
He  cited  the  rebellion  of  Bacon,  in  Virginia,  as  an  illustration  of  the  doctrine. 

"Mr.  King:  No  line  can  be  drawn  between  levying  war  and  adhering  to 
the  enemy,  against  the  United  States,  and  against  an  individual  State.  Treason 
against  the  latter  must  be  so  against  the  former. 

"  Mr  Sherman :  Resistance  against  the  laws  of  the  United  States,  as  dis 
tinguished  from  resistance  against  the  laws  of  a  particular  State,  forms  the 
line." 

Mr.  Ellsworth,  afterwards  Chief  Justice  of  the  Supreme 


OF   THE    SCHOONER    SAVANNAH.  155 

Court  of  the  United  States,  closed  the  debate  in  these  memora 
ble  words : 

"  The  United  States  are  sovereign  on  one  side  of  the  line  dividing  the  juris 
dictions;  the  States,  on  the  other.  Each  ought  to  have  power  to  defend  their 
respective  sovereignties" 

Now,  if  your  honors  please,  it  will  probably  be  attempted 
to  be  answered  to  the  argument,  that  by  section  10  of  article  1 
of  the  Constitution  of  the  Union,  the  States  are  forbidden  to 
enter  into  any  treaty,  alliance,  or  confederation,  or  to  grant 
letters  of  marque  »nd  reprisal ;  or,  without  the  consent  of  Con- 
gre-s,  to  enter  into  any  agreement  or  compact  with  another 
State ;  or  to  engage  in  war,  unless  actually  invaded,  or  in  such 
imminent  danger  as  will  not  admit  of  delay.  This  does  not  con 
flict  with,  but,  on  the  contrary,  confirms,  the  views  I  have  pre 
sented,  for  the  following  reasons : 

The  prohibition  against  entering  into  any  treaty,  alliance, 
or  confederation,  and  against  granting  letters  of  marque  and 
reprisal,  has  clearly  no  reference  whatever  to  the  relations 
which  the  States  of  the  Union  sustain  to  each  other.  It  refers 
solely  to  their  relations  towards  foreign  powers. 

I  beg  to  cite,-  upon  that  subject,  from  Grotius,  Lib.  1,  chap. 
4,  sec.  13.  He  says  : 

"In  the  sixth  place,  when  a  King  has  only  a  part  of  the  sovereignty,  the 
^rest  being  reserved  to  the  people,  or  to  a  Senate,  if  he  encroaches  upon  the 
jurisdiction  which  docs  not  belong  to  him  he  may  lawfully  be  opposed  by 
force,  since  in  that  regard  he  is  not  at  all  sovereign.  This  is  the  case,  in  my 
opinion,  even  when  in  the  distribution  of  the  sovereign  power  the  power  of 
making  war  is  assigned  to  the  King.  For  the  grant  of  such  a  power  must  in 
that  case  he  understood  only  in  its  relation  to  wars  with  foreign  powers,  those 
who  possess  a  part  of  the  sovereignty  necessarily  having  at  the  same  time  the 
•right  of  defending  it;  and  when  a  necessity  arises  of  having  recourse  to  for 
cible  resistance  against  the  King,  he  may,  by  right  of  war,  lose  even  the 
part  of  the  sovereignty  which  incontestibly  belonged  to  him." 

I  say,  then,  in  the  next  place,  that  if  any  of  the  States, 
having  come  into  collision  with  any  of  their  sister  States,  or 
with  the  General  Government,  and  being  threatened  with 
invasion  or  overthrow  in  the  contest,  resort  to  letters  of 
marque  as  a  means  of  weakening  their  adversary,  and  thereby 
preventing  or  retarding  the  threatened  invasion,  their  right  to 
do  so  is  not  at.  all  affected  or  impaired  by  that  provision  of  the 
Federal  Constitution.  The  right  of  resistance  includes  it  as  well 
as  every  other  means  of  rendering  resistance  effectual. 

So  also  with  regard  to  the  prohibition  against  entering  into 
any  treaty,  alliance,  or  confederation,  which  is  coupled"  with 
the  prohibition  against  granting  letters  of  marque  in  the  first 
paragraph  of  the  tenth  section.  That  that  prohibition  is 
restricted  to  compacts  or  agreements  with  foreign  powers,  is 
manifest  from  the  whole  structure  of  the  section. 


156  TRIAL   OF   THE    OFFICERS    AND    CREW 

The  second  paragraph  of  the  section  provides  that  no  State 
shall,  without  the  consent  of  Congress,  enter  into  any  agree 
ment  or  compact  with  another  State.  It  follows  that,  conceding 
the  invalidity  of  the  State  acts  of  separation  from  the  Union, 
which  the  whole  of  the  preceding  argument  admits,  the  Con 
federation  of  the  States  claiming  to  have  separated  is  not  valid 
against  the  authority  of  the  Union ;  but  the  individual  States, 
in  ratifying  the  Constitution  of  the  so-called  Confederate  States, 
have  done  more  than  to  make  an  agreement  or  compact  with 
each  other.  Each  one  of  them,  separately,  has  conferred  upon 
the  same  agent  the  authority  to  issue  the  commission  in  ques 
tion,  as  its  act. 

Moreover,  this  second  paragraph  of  the  tenth  section 
strongly  confirms  the  doctrine  of  the  right  of  forcible  resistance 
of  the  States  in  the  Union.  It  permits  a  State,  without  the 
consent  of  Congress,  to  engage  in  war  when  actually  invaded, 
or  in  such  imminent  danger  as  will  not  admit  of  delay.  This, 
it  will  be  remembered,  is  in  the  paragraph  of  the  section  im 
posing  restrictions  upon  the  StatevS,  and  clearly  justifies  forcible 
icsistance,  rising  even  to  the  dignity  of  war,  by  one  State,  to 
aggressive  invasion,  from  another  or  others,  when  the  danger  is 
so  imminent  that  it  will  not  admit  of  delay. 

The  same  paragraph  also  permits  individual  States  to  keep 
troops  and  ships  of-war,  in  time  of  war.  The  word  "  troops" 
here  is  evidently  used  in  the  sense  of  regular  troops,  forming 
an  army,  in  contradistinction  to  the  ordinary  State  militia. 

To  apply,  then,  these  principles  to  the  facts  of  this  case  : 
The  President  of  the  United  States  had,  by  proclamation,  on 
the  loth  April  last,  called  for  military  contingents  from  the 
various  States  of  the  Union,  to  put  down  resistance  to  the  exer 
cise  of  federal  authority  in  the  State  of  South  Carolina  and 
other  Southern  States. 

Those  States  had,  by  their  Legislatures  and  Conventions  of 
their  people,  decided  that  a  proper  case  for  resistance  to  the 
federal  authority  claimed  to  be  exercised  within  their  borders 
had  arisen,  and  had  authorized  and  commanded  such  resist 
ance. 

The  5th  section  of  the  Act  of  July  13th,  1861,  and  the  Pres 
ident's  Proclamation  of  August  10th,  under  that  Act,  concede 
that  the  resistance  was  claimed  to  be  under  authority  of  the 
State  governments;  that  that  claim  was  not  disavowed  by  the 
State  governments;  and  Congress  thereupon  legislated,  and 
the  Presid,  nt  exercised  the  authority  vested  in  him  by  the  Act, 
on  the  assumption  that  such  was  the  tact, — prohibiting  commer 
cial  intercourse  with  those  States,  authorizing  captures  and 
confiscations  of  the  property  of  their  citizens  without  regard 


OF   THE    SCHOONER    SAVANNAH.  157 

to  their  political  affinities,  and  placing  them,  as  we  conteu  1,  in 
all  respects,  upon  the  footing  or  public  enein  es. 

They  were,  moreover,  threatened  with  immediate  invasion. 
The  Proclamation  of  the  President  assigned,  as  their  first  proba 
ble  duty,  to  the  military  contingents  called  for  from  other 
States,  to  repossess  the  Federal  Government  of  property  which 
it  could  not  repossess  without  an  actual  invasion  of  the  discon 
tented  States. 

The  Congress  of  the  Union  was  not  then  in  session.  It  had 
adjourned,  after  having  omitted  to  confer  upon  the  Federal 
Executive  the  power  to  resort  to  measures  of  coercion,  which 
had  been  under  discussion  during  its  sitting. 

The  commission  in  question  was  issued  as  one  of  the  meas 
ures  of  forcible  resistance  to  this  exercise  of  federal  power, 
claimed — whether  rightfully  or  wrongfully,  is  not  the  quest:on 
here — to  be  unlawful  by  the  governments  of  all  the  States 
against  which  it  was  directed,  and  to  which  those  governments 
enjoined  forcible  resistance  upon,  and  authorized  it  by,  their 
citizens. 

I  contend,  therefore,  that  whether  the  action  of  the  Federal 
Government  or  of  the  State  government  was  justifiable  or 
unjustifiable,  no  citizen  of  any  of  the  States  which  authorized 
and  enjoined  such  resistance  is  criminally  responsible,  whether 
he  espoused  one  side  or  the  other  in  the  unhappy  controversy, 
either  to  the  General  Government  or  to  the  government  of  the 
State  of  which  he  is  a  citizen,  so  long  as  he  acted  in  good  faith, 
and  in  the  honest  belief  that  the  government  to  which  he 
adhered  was  acting  within  the  legitimate  scope  of  its  constitu 
tional  powers.  We  contend  that  every  sovereign  has  necessarily 
power  to  defend  its  sovereignty,  and  to  decide  the  mixed  ques 
tion  of  law  and  fact  as  to  whether  it  has  been  infringed  ;  that 
there  can  be  no  sovereign,  or  defence  of  sovereignty,  without 
subjects  to  whom  the  sovereign's  mandate  and  authority  are  a 
protection ;  and  that  as  one  sovereign  cannot  lawfully  punish 
another,  who  is  his  equal,  by  personal  pains  and  penalties,  tor 
resistance,  after  lie  is  subdued,  so  neither  can  punish  the  sub 
ject  of  both  who,  in  good  faith  and  under  honest  convictions  of 
duty,  adhered  to  either  in  the  struggle. 

Now,  if  your  honors  please,  I  pass  to  the  next  proposition, 
which  is : 

That  the  defendants,  who  are  citizens  of  the  Spates  calling 
themselves  Confederate  States,  cannot  be  convicted  under  this 
indictment,  if  they  in  good  faith  believed,  at  the  time  of  the 
capture  of  the  Joseph,  that  the  political  status  of  those  States, 
as  members  of  the  Federal  Union,  had  been  legally  ter 
minated,  and  that  they  had  thereby  ceased  to  be  citizens  of  the 
United  States,  and  made  the  capture  in  good  faith,  under  the 


158  TRIAL   OF   THE   OFFICERS   AND   CREW 

commission  in  evidence,  as  a  belligerent  act, — such  States 
being,  as  they  supposed,  at  war  with  the  United  States. 

It  is  not  necessary  for  me,  if  your  honors  please,  to  enlarge 
upon  that.  1  rely,  for  that  proposition,  on  the  same  authorities 
that  I  have  already  cited  to  the  point,  that  robbery  or  piracy 
cannot  be  committed,  unless  it  is  committed  with  felonious  or 
piratical  intent,  But  I  say,  with  reference  to  the  validity  or 
invalidity  of  those  acts  of  separation  from  the  Union,  that  the 
counsel  for  the  prisoners,  whatever  their  private  convictions 
may  be,  are  not  at  liberty  to  concede  their  invalidity,  so  long 
as  that  concession  may  affect  the  lives  of  their  clients.  Their 
validity  has  been  maintained  by  some  of  the  ablest  lawyers  of 
the  country,  and  in  the  Seriate  of  the  United  States  itself,  and 
by  all  the  authorities,  legislative,  executive  and  judicial,  of  the 
States  which  have  adopted  them.  If,  as  they  undoubtedly  did, 
the  prisoners  l>oiiajide  believed  in  their  validity,  the  argument 
in  favor  of  the  protection  afforded  by  the  commission,  or,  by 
what  comes  to  the  same  thing,  the  absence  of  criminal  intent, 
becomes  so  much  the  more  irresistible.  And  even  though 
wholly  invalid,  such  illegal  action  could  not  deprive  the  citi 
zen  of  the  State  of  the  shield  and  protection  afforded  him  hy 
the  action  of  the  State  government  authorizing  resistance,  and 
regarded  as  still  continuing  a  member  of  the  Federal  Union. 

The  next  proposition  is : 

That  under  the  state  of  facts  existing  in  South  Carolina,  as 
established  by  the  public  documents  and  other  evidence  in  the 
cause,  those  administering  the  Government  of  the  so-called 
Confederate  States  constituted  the  de  facto  Government  which 
replaced  the  Government  of  the  United  States  in  those  States 
before  and  at  the  time  of  the  commission  of  the  acts  charged  in 
the  indictment;  and  the  defendants  who  are  citizens  of  those 
States  were  justified  by  overpowering  necessity  in  submitting  to 
that  Government,  in  yielding  their  allegiance  to  it,  and  thence 
forth  inactively  eliding  and  supporting  it;  and  that  the  capture 
of  the  Joseph,  having  been  a  belligerent  act  in  a  war  between 
such  de  facto  Government,  and  the  people  of  the  States  which 
had  submitted  to  its  authority  on  the  one  side,  and  the  United 
States  on  the  other,  such  defendants  cannot  be  convicted  under 
this  indictment. 

Now,  with  reference  to  that,  allow  me  to  call  your  honors' 
attention  to  but  a  single  authority,  in  addition  to  those  which  I 
cited  in  my  opening  remarks  to  the  Jury.  Jt  is  the  case  of 
The  United  States  vs.  The  General  Parkhill,  decided  by  Judge 
Cadwalader,  in  the  United  States  District  Court,  in  Philadel 
phia,  in  July,  1861.  He  says  : 

"  The  foregoing  remarks  do  not  suffice  to  define  the  legal  character  of  the 


OF   THE     SCHOONER  8AVANXAH.  159 

contest  in  question.     It  is  a  civil  war,  as  distinguished  from  such  unorgan 
ized  intestine  war  as  occurs  in  the  case  of  a  mere  insurrectionary  rebellion. 

"Civil  war  may  occur  where  a  nation  without  an  established  Government 
is  divided  into  opposing  hostile  factions,  each  contending  for  the  acquisition 
of  an  exclusive  administration  of  her  Government.  If  a  simple  case  of  this 
kind  should  occur  at  this  day,  the  Governments  of  the  nations  not  parties  to 
the  contest  might  regard  it  as  peculiarly  one  of  civil  war.  As  between  the 
contending  factions  themselves,  however,  neither  could  easily  regard  their 
hostile  opponents  in  the  contest  otherwise  than  as  mere  insurgents  engaged 
in  unorganized  rebellion.  Thus,  in  the  language  of  Sir  M.  Hale,  every  suc 
cess  of  either  party  would  subject  all  hostile  opponents  of  the  conqueror  to 
the  penalties  of  treason.  A  desire  to  prevent  the  frequency  of  such  a  result 
was  the  origin  of  the  rule  of  law,  that  allegiance  is  due  to  any  peaceably 
established  Government,  though  it  may  have  originated  in  usurpation.  The 
statute  of  11  H.  7,  c.  1  (A.  D.  1494),  excusing  an  English  subject  who  has 
yielded  obedience,  or  who  has  even  rendered  military  service  to  a  Ruler  who 
was  King  in  fact,  though  not  in  law,  was  declaratory  of  a  previous  principle 
of  judicial  decision." 

After  referring  to  Bracton,  Coke,  Hawkins,  and  Foster,  the 
learned  Judge  proceeds  : 

"  It  has  already  been  stated  that  a  King  in  whose  name  justice  was  admin 
istered  in  the  Courts  of  law  was  usually  regarded  as  in  actual  possession  of 
the  Government. 

"  Civil  war  of  another  kind  occurs  where  an  organized  hostile  faction  is 
contending  against  an  established  Government,  whose  laws  are  still  admin 
istered  in  all  parts  of  its  territory  except  places  in  the  actual  military  or 
naval  occupation  of  insurgents  or  their  adherents. 

"  In  such  a  case  the  question  has  been,  whether  a  place  in  the  actual  mili 
tary  occupation  of  the  revolutionary  faction,  or  of  its  adherents,  may,  under 
the  law  of  war,  be  treated  by  that  Government  as  if  the  contest  was  a  for 
eign  war  and  the  place  occupied  by  public  enemies.  In  the  case  of  a  mari 
time  blockade  of  such  a  place,  the  affirmative  of  this  question  was  decided  in 
England,  in  the  year  1830.  It  had  previously  been  so  decided  by  the  Su 
preme  Tribunal  of  Marine,  at  Lisbon  (3  Scott,  201 ;  2  Bingh.,  N.  C.,  781)." 

Judge  Oadwalader  then  refers  to  Grotius  (Proleg.,  sec.  23), 
citing  with  approval  the  statement  by  Demosthenes  of  the  rule 
of  public  law  in  the  case  of  the  invasion  by  Deiopeithes,  the 
Athenian  commander  in  the  Chersonese,  of  the  dominions  of 
Philip  of  Macedon,  who  had  sent  a  military  force  to  the  relief 
of  Cardia,  when  sought  to  be  reduced  to  submission  by  Deio 
peithes — that  wherever  judicial  remedies  are  not  enforceable 
by  a  Government  against  its  opponents,  the  proper  mode  of 
restoring  its  authority  is  war, — and  continues  : 

"  This  doctrine  is  of  obvious  applicability  to  civil  war  of  a  third  kind, 
which  occurs  where  the  exercise  of  an  established  Government's  jurisdiction 
has  been  revolutionariiy  suspended  in  one  or  more  territorial  Districts,  whose 
willing  or  unwilling  submission  to  the  revolutionary  rule  prevents  the  execu 
tion  of  the  suspended  Government's  laws  in  them,  except  at  points  occupied 
by  its  military  or  naval  forces.  The  present  contest  exemplifies  a  civil  war 
of  this  kind.  It  was  also,  with  specific  differences,  exemplified  in  the 
respective  contests  which  resulted  in  the  independence  of  the  United  Nether 
lands  and  of  the  United  States." 


160  TRIAL   OF   THE    OFFICERS    AND   CREW 

He  then  proceeds : 

"Within  the  limits  of  two  of  the  States  in  which  so-called  ordinances  of 
secession  have  been  proclaimed  the  execution  of  the  laws  of  the  United  States 
has  not  been  wholly  suppressed.  They  are  enforceable  in  the  Western  Judi 
cial  District  of  Virginia,  and  perhaps  in  the  adjacent  Eastern  Division  of 
Tennessee.  In  the  other  nine  States  which  profess  to  have  seceded,  includ 
ing  South  Carolina,  those  laws  are  not  enforceable  anywhere. 

"  The  Constitution  of  the  United  States  prohibits  the  enactment  by  Con 
gress  of  a  bill  of  attainder,  and  secures,  in  all  criminal  prosecutions,  to  the 
accused,  the  right  to  a  speedy  public  trial,  by  Jury  of  the  State  and  District 
wherein  the  crime  shall  have  been  committed,  which  District  must  have  been 
previously  ascertained  by  law.  Therefore  if  a  treasonable  or  other  breach  of 
allegiance  is  committed  within  the  limits  of  one  of  these  nine  States,  it  is  not 
at  present  punishable  in  any  Court  of  the  United  States.  This  was  practi 
cally  shown  in  a  recent  case  (Greiner's  case,  Legal  Intelligencer,  May  10, 
1861).  War  is  consequently  the  only  means  of  self-redress  to  which  the 
United  States  can,  in  such  a  case,  resort,  for  the  restoration  of  the  constitu 
tional  authority  of  their  Government. 

u  The  rule  of  the  common  law  is,  that  when  the  regular  course  of  justice 
is  interrupted  by  revolt,  rebellion,  or  insurrection,  so  that  the  Courts  of  jus 
tice  cannot  be  kept  open,  civil  war  exists,  and  hostilities  may  be  prosecuted 
on  the  same  footing  as  if  those  opposing  the  Government  were  foreign  ene 
mies  invading  the  land.  The  converse  is  also  regularly  true,  that  when  the 
Courts  of  a  Government  are  open,  it  is  ordinarily  a  time  of  peace.  But  though 
the  Courts  be  open,  if  they  are  so  obstructed  and  overawed  that  the  laws  can 
not  be  peaceably  enforced,  there  might  perhaps  be  cases  in  which  this  con 
verse  application  of  the  rule  would  not  be  admitted.  (1  Knapp,  346,  360, 
361 ;  1  Hale,  P.  C.  347;  Co.  Litt.  249  &.)" 

Now,  if  your  honors  please,  the  last  proposition  with  which 
I  am  compelled  to  trouble  you  is: 

fj(r'  That  the  Acts  of  Congress  and  the  Proclamations  of  the 
President  since  the  outbreak  of  the  present  struggle  evidence 
the  existence  of  a  state  of  war  between  the  Federal  Government 
and  the  States  calling  themselves  the  Confederate  States  from  a 
time  anterior  to  the  performance  of  the  acts  charged  in  the  indict 
ment,  in  which  all  the  citizens  of  those  States  are  involved  and 
treated  as  public  enemies  of  the  Federal  Government,  whether 
they  had  any  agency  in  initiating  the  conflict  or  not;  and  that 
the  natural  law  of  self-preservation,  under  these  circumstances, 
justified  the  defendants,  who  are  citizens  of  those  States,  in  the 
commission  of  the  acts  charged  in  the  indictment,  as  a  means 
of  weakening  the  power  of  destruction  possessed  by  the  Fede 
ral  Government. 

Now  the  counsel  on  the  other  side,  from  the  intimation 
which  he  gave  when  he  addressed  the  Court,  intended  to  treat 
that  subject  of  a  de  facto  Government,  or  whatever  it  was,  on 
the  footing  of  men  under  duress,  not  in  danger  of  their  lives, 
joining  with  rebels  and  aiding  them  in  a  treasonable  enter 
prise.  Your  honors  will  perceive  that  was  not  the  footing  on 
which  we  put  it  at  all.  It  was  the  footing  on  which  it  stood  at 


OF  THE    SCHOONER   SAVANNAH.  161 

one  time,  when  rebellion  first  broke  out,  when  forts  were  seized 
— acts  which  it  is  no  part  of  the  duty  of  counsel  on  this  trial  to 
justify  or  say  anything  about,  because  there  is  no  act  connected 
with  that  part  of  the  struggle  which  is  in  evidence  on  this  trial. 
But  on  that  I  wish  to  refer  to  what  Judge  Cadwalader  said  in 
another  case — that  of  Greiner — which  undoubtedly  the  learned 
counsel  for  the  Government  had  in  his  mind  when  he  drew  that 
distinction.  Shortly  before  the  late  so-called  secession  of  Geor 
gia,  a  volunteer  military  company,  of  which  Greiner  was  a 
member,  by  order  of  the  Governor,  took  possession  of  a  fort 
within  her  limits,  over  which  jurisdiction  had  been  ceded  by 
her  to  the  United  States,  and  garrisoned  it  untillier  ordinance 
of  secession  was  promulgated,  when,  without  having  encoun 
tered  any  hostile  resistance,  they  left  it  in  the  possession  of  her 
Government.  A  member  of  this  company,  Charles  A.  Grei 
ner,  who  had  participated  in  the  capture  and  detention  of  the 
fort,  afterwards  visited  Pennsylvania,  at  a  period  of  threatened 
if  not  actual  hostilities  between  the  Confederate  States  and  the 
United  States.  He  was  arrested  in  Philadelphia,  under  a 
charge  of  treason.  Your  honors  will  very  readily  perceive, 
what  a  difference  there  was  between  that  case  and  this.  Judge 
Cadwalader  applies  the  rule  in  reference  to  that ;  and,  speak 
ing  of  this  doctrine  of  allegiance  due  to  a  Government  in  fact, 
lie  says: 

"  This  doctrine  is  applicable  wherever  and  so  long  as  the  duty  of  alle 
giance  to  an  existing  Government  remains  unimpaired.  When  this  fort  was 
captured,  the  accused,  in  the  language  of  the  Supreme  Court,  owed  allegiance 
to  two  Sovereigns,  the  United  States  and  the  State  of  Georgia  (see  14  How. 
20).  The  duty  of  allegiance  to  the  United  States  was  co-extensive  with  the 
constitutional  jurisdiction  of  their  Government,  and  was,  to  this  extent, 
independent  of,  and  paramount  to,  any  duty  of  allegiance  to  the  State  (6 
Wheaton,  381,  and  21  Howard,  517).  His  duty  of  allegiance  to  the  United 
States  continued  to  be  thus  paramount  so  long  at  least  as  their  Government 
was  able  to  maintain  its  peace  through  its  own  Courts  of  Justice  in  Georgia, 
and  thus  extend  there  to  the  citizen  that  protection  which  affords  him  secu 
rity  in  his  allegiance,  and  is  the  foundation  of  his  duty  of  allegiance.  Though 
the  subsequent  occurrences  which  have  closed  these  Courts  in  Georgia  may 
have  rendered  the  continuance  of  such  protection  within  her  limits  impossi 
ble  at  this  time,  we  know  that  a  different  state  of  thing*  existed  at  the  time 
of  the  hostile  occupation  of  the  fort.  The  revolutionary  secession  of  the  State, 
though  threatened,  had  not  then  been  consummated.  This  party's  duty  of 
allegiance  to  the-  United  States,  therefore,  could  not  then  be  affected  by 
any  conflicting  enforced  allegiance  of  the  State.  He  could  not  then,  as  a 
citizen  of  Georgia,  pretend  to  be  an  enemy  of  the  United  States,  in  any  sense 
of  the  word  'enemy' which  distinguishes  its  legal  meaning  from  that  of 
traitor.  Future  cases  may  perhaps  require  the  definition  of  more  precise  dis 
tinctions  and  possible  differences  under  this  head.  The  present  case  is,  in  my 
opinion,  one  of  no  difficulty,  so  far  as  the  question  of  probabU  cause  for 
the  prosecution  is  concerned" 

Having  decided  that,  in  the  present  s'ate   of  things,  he 
11 


162  TRIAL   OF  THE   OFFICERS   AND   CREW 

could  not  commit  the  prisoner  for  trial,  to  be  conveyed  to  Geor 
gia,  because  there  were  no  Courts  of  the  United  States  there, 
and  because  it  would  be  a  violation  of  the  Constitution  of  the 
United  States — that  he  could  not  have  a  speedy  trial — he  de 
cided  that,  under  a  subsequent  act  of  Congress,  he  Lad  a  right 
to  require  the  prisoner  to  find  sureties  to  be  of  good  behavior 
towards  the  United  States. 

I  have  thus  ended  what  I  had  to  say  upon  this  subject,  with 
but  one  single  exception. 

A  great  deal  will  be  said,  undoubtedly,  on  the  part  of  the 
prosecution,  here,  with  reference  to  this  being  a  revolutionary 
overthrow  of  the  Government  of  the  United  States  in  the  States 
which  have  taken  these  steps.  1  have  only  to  ask,  in  reference 
to  that — conceding  it,  for  the  sake  of  argument,  in  its  fullest 
extent — what  was  the  adoption  of  the  Constitution  of  the  United 
States  but  a  revolutionary  overthrow  of  the  previously  existing 
Confederation  ?  It  was  done  by  nine  States,  without  the  con 
sent  of  four,  whose  consent  was  necessary,  and  the  Government 
of  the  United  States  went  into  operation ;  and  it  was  a  long 
time  before  at  least  two  of  them  came  in  under  the  new 
Government. 

J/r.  Evarts :  Will  my  learned  friend  allow  me  to  ask  him, 
in  that  part  of  his  argument  which  proceeds  upon  the  right  of  a 
State,  yet  being  a  State,  to  justify  the  acts  of  its  citizens,  to 
explain  the  proposition  that  a  State  can  oppose  the  United 
States,  within  and  under  the  Constitution,  in  regard  to  any  law 
of  the  United  States  about  which  this  essential  right  of  judg 
ment,  whether  the  aggression  of  the  United  States  has  carried 
it  beyond  the  powers  of  the  Constitution,  or  not,  is  claimed  to 
exist  ? 

Mr.  Larocque :  I  thought  I  had  been  very  explicit  on  that.  I 
said,  in  the  first  place,  that  I  had  nothing  to  do  with  the  ques 
tion  of  right  or  wrong.  I  said  this:  That  a  collision  had 
occurred  between  the  government  of  the  State  and  the  Federal 
Government ;  that  each  being  sovereign,  within  the  limitation 
of  its  powers,  had  a  right  to  judge  for  itself  whether  the  occa 
sion  for  such  a  collision  had  occurred,  or  not;  that  these 
prisoners,  citizens  of  the  States  which  had  decided  that  such  a 
case  had  occurred,  as  subjects  owing  allegiance  to  two  equal 
and  co-ordinate  sovereigns,  which  had  come  into  hostile  col 
lision  with  each  other,  must  exercise,  upon  their  consciences, 
their  election  to  which  Sovereign  they  would  adhere;  and  that, 
whatever  may  be  the  unfortunate  consequences,  they  are  not 
responsible  before  the  tribunal  of  the  other  sovereignty  because 
they  adhered  to  one  of  them;  that  they  would  be  no  more 
responsible  before  the  criminal  tribunals  of  South  Carolina  if, 


OF  THE   SCHOONER   SAVANNAH.  163 

in  this  contest,  they  had  adhered  to  the  General  Government 
and  borne  arms  against  their  native  State,  than  they  are  respon 
sible  in  the  tribunals  of  the  Federal  Government  because,  exer 
cising  their  own  consciences,  they  had  adhered  to  the  State 
and  not  to  the  Federal  Government.  I  say  it  is  like  the  case  of 
a  child  whose  parents  disagree,  and  who  is  obliged  to  adhere 
either  to  his  father  or  his  mother  ;  and  that  he  violates  no  law 
of  God  or  of  man  in  adhering  to  either. 

Mr.  Smith:  If  the  Court  please,  I  rise  for  a  purpose  different 
from  the  remark  that  I  wish  to  make  in  reply  t  >  the  last  illus 
tration  of  my  learned  friend.  I  might  say  that  the  instance  of 
a  child  is  one  very  parallel  to  that  we  might  have  given — that 
the  father  is  the  superior  authority,  where  there  is  a  difference 
between  two  parents. 

I  rise,  however,  to  present  to  the  Court,  as  one  of  the 
authorities,  or  rather  a  citation  which  will  receive  its  respectful 
consideration,  the  Charge  of  Mr.  Justice  Grier,  in  tue  case  tried 
in  Philadelphia ;  and  also  the  opinion  of  Judge  Cadwalader,  in 
the  same  case. 

Mr.  Brady  :  Who  reported  this  ? 

Mr.  Smith  :  I  received  it,  by  telegraph,  from  the  District 
Attorney  of  Philadelphia;  and  it  is  also  printed  in  a  newspaper 
published  last  evening  in  Philadelphia.  I  have  compared 
them,  and  the  two  accounts  perfectly  agree.  I  do  not  cite  them 
as  authority,  but  as  entitled  to  the  respectful  consideration  of 
the  Court. 

Mr.  Brady :  As,  now-a-days,  what  the  newspapers  publish 
one  day  they  generally  contradict  the  next,  I  think  any 
report  should  be  taken  with  some  grains  of  allowance,  at  least. 
I  suppose  I  would  recognize  the  style  of  Judge  Grier. 

Mr.  Blatchford :  I  think  you  will,  on  examining  it.  It  is 
evidently  printed  from  the  manuscript. 

Mr.  Smith  read  the  charge  of  Judge  Grier  in  the  case  of 
the  privateers  tried  in  Philadelphia. 

Mr.  Brady:  Tell  me  what  question  of  fact  was  there  left  to 
the  Jury  ? 

Mr.  Smith :  I  refer  you  to  Judge  Cadwalader's  opinion, 
which  is  much  longer. 

Mr.  Brady :  1  do  not  see  that  there  was  anything  left  for 
the  Jury.  Judge  Grier  decided  that  case, — which  undoubtedly 
he  could  do,  for  he  is  a  very  able  man. 

Mr.  Sullivan  put  in  evidence  the  log-book  of  the  Savannah. 


164  TRIAL    OF   THE    OFFICERS    AND    CREW 


ARGUMENT  OF  MR.  MAYER,  OF  COUNSEL  FOR  THE 

DEFENCE. 

MR.  MAYER  paid  : — May  it  please  your  honors, — A  foreign- 
born  citizen  now  rises,  on  behalf  of  eight  of  the  defendants, 
who,  as  it  has  been  conceded  by  the  prosecution,  are  subjects  of 
foreign  States.  It  might  appear  almost  superfluous,  after  the 
full  and  eloquent  argument  of  our  venerable  brother — I  was 
almost  tempted  to  say  father  (Mr.  LORD) — for  one  of  the  junior 
counsel  for  the  defence  to  say  anything.  Still,  I  thought  it 
incumbent  on  me  to  anticipate  a  construction  or  interpretation 
which  the  prosecution  may  attempt  to  make,  by  offering,  my 
self,  a  proposition.  But  before  reading  it,  I  will,  as  briefly  as 
my  proposition  is  brief,  state  my  comment  thereon. 

Let  us,  in  the  first  place,  look  at  the  aspect  of  the  relations 
in  which  these  foreigners  stood  at  the  time  of  their  committing 
this  alleged  offence.  They  are  all  sea-taring  men.  Their  va 
rious  crafts  had  been  locked  up  in  the  p  >rt  of  Charleston  by 
the  blockade  there.  Business,  as  we  have  heard  here  in  evi 
dence,  was  prostrated.  Nothing  was  left  for  them  but  to  enlist 
in  the  army  of  the  Confederacy,  or  to  become  privateers.  It 
is  certainly  a  pity  that  they  did  not  choose  the  first  alternative  ; 
for,  even  if  they  had  been  caught  with  arms  in  their  hands, 
their  fate  would  now  be  far  better  than  it  is.  They  would  not 
now  be  in  jeopardy  of  their  lives,  threatened  with  the  pains 
and  penalties  of  a  law  that  is  not  applicable  to  them.  But 
beings  as  I  said  before,  inured  to  the  life  of  seafarers,  they 
chose  to  become  privateers. 

We  must,  however,  in  judging  of  their  act,  place  ourselves 
in  their  position.  They  were  foreigners.  As  foreigners,  they 
brought  to  this  country  views  and  notions  as  regards  their  act 
which  are  widely  different  from  those  sought  to  be  enforced 
here.  They  knew  the  practice  and  theories  of  Europe  in  regard 
to  their  act.  "What  are  those  views  and  theories  ?  I  can  state 
them  in  a  very  few  words,  and  am  sorry  that  the  authorities  to 
which  I  shall  refer  are  in  a  language  which  may  not  be  famil 
iar  to  your  honors.  I  will,  however,  state  their  effect.  It  is 
this  :  vVhenever  a  rebellion  in  any  country  has  assumed  such 
extensive  magnitude  as  no  longer  to  be  a  simple  insurrection, 
which  may  be  put  down  by  police  measures  or  regulations, 
but  has  come  to  such  a  degree  that  mighty  armies  are  opposed 
to  each  other,  although  the  revolted  portion  may  not  have  been 
acknowledged  by  any  nation,  yet  beUigerent  rights  must  be 


OF   TUB    SCHOONER   SAVANNAH.  1C5 

granted  to  it.  This  is  the  notion,  or  theory,  which  has  entered 
into  the  mind  of  every  European,  to  whatever  State  or  nation 
he  may  belong.  I  may  be  permitted  to  quote  a  lew  historical 
facts  to  show  why  this  is  so.  When  the  Netherland  Colonies 
revolted  against  Spain  the  privateers  of  the  Prince  of  Orange, 
even  before  he  was  elected  Admiral  General  by  those  Colonies, 
were  by  most  nations  recognized.  They  were  only  not  "recog 
nized  by  some  of  those  nations  against  which  they  committed 
depredations  ;  and  it  is  a  historical  fact  that  a  great  many  of 
those  privateers  commissioned  by  the  Prince  of  Orange  became 
pirates. 

Another  case  is  furnished  by  our  own  Revolution.  It  is 
known  to  all  Europeans  that,  although  in  the  beginning  of  the 
American  Revolution  England  did  not  recognize  the  belliger 
ent  rights  of  America,  yet,  after  some  time,  she  did  recognize 
those  rights,  even  by  a  Parliamentary  Act.  I  refer  to  16  George 
the  Third,  ch.  5.  The  same  was  the  case  in  the  French  Revo 
lution;  and  there  I  may  refer  to  a  very  curious  fact.  England 
recognized  the  privateers  of  the  revolutionary  Government  of 
France,  so  far  as  those  privateers  went  against  other  nations ; 
but  when  they  cruised  against  her  own  commerce  she  did  not 
recognize  them.  She  remonstrated  with  Denmark  because 
Denmark  had  recognized  them,  and  Denmark  simply  pointed 
to  her  (England's)  own  course. 

All  these  facts  are  very  well  known  to  every  European, 
and  it  is  with  a  knowledge  of  these  facts  that  every  European 
looks  upon  a  revolution.  To  express  it  in  a  very  short  sen 
tence,  it  is  the  theory  of  "  Let  us  have  fair  play." 

If  your  honors  please,  I  may  say  that  this  notion  of  bellig 
erent  rights  in  revolution  has  entered  into  the  flesh  and  blood 
of  every  European  to  such  an  extent,  that  the  only  nation 
which  does  not  allow,  in  revolution,  that  fair  play,  is  despised 
and  hated,  except  by  these  United  States.  I  mean  Russia. 
Russia  is  now  very  friendly  towards  this  Union  ;  not,  however,  I 
may  be  permitted  to  state — reversing  an  oft-quoted  passage  of 
Shakspeare — not  because  she  loves  Rome  more,  but  that  she 
loves  Csesar  less.  It  is  not  out  of  love  for  this  country,  but  be 
cause  the  diplomatists  of  Russia — the  farthest-seeing  diplomatists 
of  Europe — hope  that  England  and  France  will  interfere  in  the 
contest  between  these  States,  and  that  she  may  get  an  oppor 
tunity  to  return  the  compliment  to  these  two  powers  which  she 
received  from  them  at  Sebastopol.  With  a  knowledge  of  these 
facts,  and  with  these  European  theories,  these  foreigners,  now 
indicted  under  the  Act  of  1790,  entered  into  this  privateering 
business. 

They  saw,  as  I  said  before,  Charleston  blockaded.  To  them 
a  blockade  is  an  act  of  belligerent  rights.  They  saw  a  consti- 


166  TRIAL   OF   THE   OFFICERS    AND   CREW 

tutional  government  adopted  in  the  Confederate  States.  They 
never  dreamed  that,  if  they  wished  to  embark  in  this  priva 
teering  business,  they  should  be  treated  as  pirates.  They  knew 
well,  as  every  European  knows  who  has  any  knowledge  of 
international  law,  that  there  are  two  kinds  of  piracy — piracy 
by  international  law,  and  piracy  under  municipal  law — muni 
cipal  piracy,  or,  as  Mr.  Lord  called  it  yesterday,  statutory  piracy. 
And  now  I  refer,  as  to  the  right  of  one  nation  making  any 
thing  piracy  that  is  not  piracy  by  the  law  of  nations,  to 
Wheaton,  volume  6,  page  85  ;  1st  Phillimore,  381 ;  and  to  1st 
Kent,  195.  I  will  not  take  up  the  time  of  your  honors  in  read 
ing  all  these  passages,  but  I  hold  here  the  last  work  on  inter 
national  law.  It  is,  however,  written  in  the  German  language. 
It  is  of  unbounded  authority  on  the  Continent,  and  has  been 
translated  into  French  and  Greek.  It  is  very  frequently  re 
ferred  to  by  all  those  authors  whom  I  have  just  quoted.  It 
states  this  theory  in  two  lines,  which  I  will  read  to  your  honors 
in  a  translation : 

"  Laws  of  individual  nations  (as,  for  instance,  the  French  law  of  the  10th 
April,  1825)  may,  so  far  as  their  own  subjects  are  concerned,  either  alter  the 
meaning  of  piracy,  or  extend  its  operation  ;  but  they  are  not  allowed  to  do 
that  to  the  prejudice  of  other  States." 

I  refer  to  Hefter  on  Modern  International  Law,  4th  ed.,  page 
191. 

From  this  we  can  see  that  there  are  two  kinds  of  piracy — 
national  piracy  and  municipal  piracy.  No  State  can  be  pre 
vented  by  any  law  of  nations  from  making  anything  piracy 
which  that  State  pleases.  For  instance,  there  is  a  law  of  piracy 
in  Spain  that  any  person  committing  frauds  in  matters  of  insur 
ance  is  a  pirate  ;  or  that  any  one  even  cutting  the  nets  of  a  sim 
ple  fisherman  is  a  pirate.  1  might  quote  other  instances.  In  our 
own  country  the  slave-trade  is  LI  piracy  ;  but  that  does  not  make 
it  piracy  everywhere.  In  some  of  the  States  of  Germany 
slave-trade  is  kidnapping,  and  is  punished  as  such. 

What,  now,  is  the  relation  of  these  foreign  era  to  this  munici 
pal  piracy,  under  the  indictment  with  which  they  stand  charged  ? 
"hat  it  is  municipal  piracy,  I  need  not  say  anything  further,  af 
ter  the  full  argument  of  our  friend  and  father,  Mr.  Lord.  The 
law  is  very  distinct.  It  is,  "  if  any  citizen  shall  do  s  >  and  so." 
But  how  do  these  men  corne  in  ?  Here  I  come  to  the  point 
why  I  thought  it  fit  and  incumbent  on  me  to  offer  my  propo 
sitions.  rlhc  prosecution  will  certainly  stretch,  as  I  said  be 
fore,  the  construction  and  interpretation  of  the  law  in  this 
way:  It  will  say,  "  These  men  were  apprehended  on  an 
American  bottom,  and,  being  on  an  American  bottom,  they 
were  on  American  soil,  and  as,  according  to  criminal  law, 
they  are  protected  by  our  law,  so  they  are  bound  by  our 


OF  THE   SCHOONER   SAVANNAH.  167 

law."  This,  I  apprehend,  is  the  theory  on  which  the  pros 
ecution  will  urge  that  these  foreigners  —  notwithstanding 
the  distinct  expression  of  the  law,  "if  any  citizen"  —  shall 
be  found  guilty  under  this  indictment.  But  as  they  are  for 
eigners  to  this  law,  so  is  this  law  foreign  to  them.  And  there 
is  a  principle  in  criminal  law  which  says — I  read  from  section 
238  of  Bishop's  Criminal  Law,  vol.  I. — 

"  It  is  a  general  principle  that  every  man  is  presumed  to  know  the  laws 
of  the  country  in  which  he  dwells,  or,  if  resident  abroad,  transacts  business. 
And  within  certain  limits,  not  clearly  defined,  this  presumption  is  conclusive. 
Its  conclusive  character  rests  on  considerations  of  public  policy,  and,  of 
course,  it  cannot  extend  beyond  this  foundation,  though  we  may  not  easily 
say,  on  the  authorities,  precisely  how  far  the  foundation  of  policy  extends. 
We  may  safely,  however,  lay  down  the  doctrine  that  in  no  case  may  one 
enter  a  Court  of  Justice  to  which  he  has  been  summoned,  in  either  a  civil  or 
criminal  proceeding,  with  the  sole  and  naked  defence  that  when  he  did  the 
thing  complained  of  he  did  not  know  of  the  existence  of  the  law  he  violated. 
Ignorantia  juris  non  excusat  is,  therefore,  a  principle  of  our  jurisprudence, 
as  it  is  of  the  Roman,  from  which  it  is  derived." 

This  rule,  so  essential  to  the  ordinary  administration  of 
justice,  cannot  be  deemed  strange  in  criminal  cases  generally, 
because  most  indictable  wrongs  are  mala  in  se,  and,  therefore, 
offenders  are  still  conscious  of  violating  the  law  "  written  in 
every  man's  heart." 

But — and  now  I  refer  to  the  note  to  this  section,  which  says — 
"ignorance  of  the  law  of  foreign  countries  is,  with  the  excep 
tion  noticed  in  the  text,  ignorance  of  fact  which  persons  are 
not  held  to  know."  The  author  cites  the  following  authorities  : 
Story's  Equity  Jurisprudence,  sections  110,  23  ;  American 
Jurisprudence,  sections  146  and  317 ;  to  which  I  would  add  8 
Barbonr's  Supreme  Court  Reports,  838  and  839,  and  the  case 
of  Rex  versus  Lynn,  2d  Term  Report,  233. 

Now,  I  contend  that,  as  this  law  under  which  the  indict 
ment  is"  drawn  is  a  law  creating  municpal  piracy,  so  it  is  a  law 
foreign  to  these  foreigners  ;  that,  therefore,  as  to  them,  it  is  a 
matter  of  fact,  and,  according  to  the  criminal  theory,  igno 
rant  la  facti  excusat,  these  foreigners  cannot  be  found  guilty 
under  this  law.  Municipal  piracy,  to  carry  out  the  doctrine  of 
this  theory,  is  not  malum  in  se y  for,  as  I  said  before,  interna 
tional  law  does  not  acknowledge  it  as  such,  but  is  opposed  to 
it  as  to  foreigners ;  and  if  I  understand  well  the  decision  of  the 
Supreme  Court,  it  is  even  acknowledged,  in  the  case  of  the 
United  States  versus  Palmer,  3d  Wheaton,  010,  that  the  Con 
gress  of  the  United  States  cannot  make  that  piracy  which  is 
not  piracy  by  the  law  of  nations,  in  order  to  give  jurisdiction 
to  its  Courts  over  such  offences. 

Besides,  this  knowledge  of  facts  enters  a  good  deal  into  the 
theory  of  intent.  So  much  has  been  said  about  the  piratical  in- 


168  TRIAL   OF   THE   OFFICERS   AND   CREW 

tent,  that  I  can  pass  this  by  in  silence.  But,  with  reference  to 
the  theory  that  foreigners  are  to  be  taken  as  ignorant  of  facts, 
I  will  give  an  illustration  that  was  suggested  to  me  this  morn 
ing  by  an  incident  which  occurred  on  my  way  to  the  Court. 
A  little  boy  in  the  street  handed  to  me  a  card  of  advertise 
ment  which  had  all  the  appearance  of  a  bank  note.  Now,  I 
remembered  at  the  moment  that  about  three  years  ago  the 
Legislature  of  South  Carolina  passed  a  law  making  the  issuing 
and  publication  of  such  advertisements — such  business  cards — 
an  offence,  punishable,  if  I  am  not  mistaken,  both  by  fine  and 
imprisonment.  Now  suppose  that  the  great  American  show 
man  at  the  corner  of  Ann  and  Broadway  should  carry  his 
"  What  is  it"  or  Hippopotamus  down  to  Charleston,  and  issue 
such  an  advertisement,  and  he  should  be  brought  before  the 
Court  of  South  Carolina;  would  it  not  be  unjust,  as  the  offence 
is  not  rnalum  in  se,  to  find  him  guilty?  Certainly  it  would 
be  ;  and,  according  to  the  same  theory,  I  cannot  imagine,  by 
any  possible  process  of  reasoning,  that  these  prisoners  should 
be  deemed  guilty  under  an  indictment,  when  the  law  was  en 
tirely  foreign  to  them.  They  may  justly  say,  as  they  might 
have  known,  and  did  perhaps  know,  that  our  country,  too, 
holds  to  this  simple  doctrine  :  "Let  us  have  fair  play."  So 
when  certain  provinces  rose  up  in  revolt  against  the  parent  or 
original  Government,  to  conquer,  as  it  were,  their  independ 
ence,  this  country  maintained  a  state  of  neutrality,  and  granted 
to  both  parties  belligerent  rights.  Many  such  cases  have  been 
cited ;  but  the  most  striking  one,  I  am  astonished,  has  nut  been 
cited.  I  will  refer  to  it  now.  It  is  the  case  of  the  United  States 
against  the  Miramon  and  the  Havana,  tried  before  the  District 
Court  of  New  Orleans.  These  two  steamers  were  commissioned 
vessels,  belonging  to  an  authority  not  only  not  recognized  by  the 
Government  of  the  United  States,  but  opposed  to  the  Govern 
ment  which  had  been  recognized  by  ours.  They  were  commis 
sioned  ships  of  General  Miramon,  and  were  seized  and  libeled; 
yet  they  were  released.  Perhaps  it  would  have  been  better 
for  us  if  they  had  not  been  released,  because  they  have  since 
given  us  some  trouble — one  of  them  (the  Havana)  having  been 
converted  into  the  ubiquitous  Sumter,  which  is  rather  a  terror 
to  our  mercantile  marine. 

I  will  not  further  trespass  upon  your  honors'  time,  but  will 
immediately  read  my  proposition.  That  proposition  is,  that, 
"  As  to  the^defendants  who  are  shown  to  have  been  citizens  of 
foreign  States  at  the  date  of  the  alleged  offence,  the  law  is,  that 
they  cannot  be  found  guilty  of  piracy  under  the  present  in 
dictment,  which  includes  only  piracy  by  municipal  law — the 
ignorance  of  which,  as  to  foreigners,  is  not  ignvrantia  legis,  but 


OF  THE   SCHOONER   SAVANNAH.  169 

ignorantia  facti.     Therefore  the  defendant  Clarke,  and  the 
other  foreigners,  should  be  acquitted." 

Before,  however,  I  close  my  few  remarks,  I  must,  in  justice 
to  my  immediate  client,  William  Charles  Clarke,  add  another 
observation.  I  have,  by  submitting  to  your  honors  the  propo 
sition,  separated,  as  it  were,  his  case  and  that  of  the  other  for 
eigners  from  the  rest  of  the  prisoners.  I  did  so  on  my  own  re 
sponsibility  ;  for  he  let  me  understand  that  he  did  not  wish  to 
see  his  case  separated  from  the  others.  He  expressed  that  sen 
timent  to  me  in  a  very  forcible  German  proverb.  It  was,  "  Mit- 
gcgangen,  mitgefangen,  mitgehangen  /"*  Yet  I  thought  it  incum 
bent  on  me,  as  his  counsel,  to  urge  all  those  circumstances  that 
might  be  beneficial  to  him  and  to  those  in  the  same  position, — 
trusting  that  the  unity  and  identity  of  the  fate  of  all  thus  sev 
ered  by  me  may  be  restored  in  this  wise :  that  the  case  of  these 
foreigners  may  be  made  also  the  case  of  the  four  citizens,  both 
by  the  ruling  of  your  honors  and  the  verdict  of  general  acquit 
tal  of  the  Jury. 

Mr.  Brady — Before  Mr.  Evarts  proceeds  to  close  the  legal 
considerations  involved  in  the  case  I  feel  it  proper  to  advise 
him  of  a  point  for  which  I  will  contend,  and  on  the  discussion 
of  which  I  do  not  now  intend  to  enter.  I  will  not  admit  that 
Congress  had  the  power,  under  the  Constitution  of  the  United 
States,  to  pass  the  ninth  section  of  the  Act  of  1790,  which, 
upon  my  construction  of  it,  would  punish  as  piracy  the  act  of 
an  American  citizen  who  should  take  a  commission  from  En 
gland  or  France  and  then  commit  an  act  of  hostility  on  an 
American  ship  or  on  an  American  citizen  on  the  high  seas. 
The  argument  is  in  a  nutshell ;  though,  of  course,  I  shall  give 
some  illustrations  at  the  proper  time.  It  is  this — that  there  is 
no  common-law  jurisdiction  of  offences  in  this  Government; 
that  it  can  take  cognizance  of  no  crimes  except  those  which 
are  created  by  Act  of  Congress,  including  piracy;  and  that 
the  authority  of  the  Constitution  conferred  upon  Congress,  to 
pass  laws  denning  piracy  and  to  punish  offences  against  the 
law  of  nations,  relates  only  to  such  offences  as  were  then  known, 
and  does  not  invest  the  Legislature  of  the  Federal  Government 
with  authority,  under  pretence  of  denning  well-known  offences, 
to  create  other  and  new  offences,  as  is  attempted  to  be  done 
in  the  Act  of  1790. 


*  "  Gone  along,  caught  along,  hanged  along.' 


170  TRIAL   OF   THE    OFFICERS    AND    CREW 


ARGUMENT  OF  MR.  EYARTS. 

Mr.  Evarts  said :  If  the  Court  please,  I  shall  hardly  find  it 
necessary,  in  stating  the  propositions  of  law  for  the  Government, 
to  consume  as  much  time  as  has  been,  very  usefully  and  very 
properly,  employed  by  the  various  counsel  for  the  prisoners 
in  asking  your  attention  to  the  views  which  they  deem  impor 
tant  and  applicable  in  defence  of  their  clients.  The  affirma 
tive  propositions  to  which  the  Government  has  occasion  to  ask 
the  assent  of  the  Court,  in  submitting  this  case  to  the  Jury,  are 
very  few  and  simple.  Your  honors  cannot  have  failed  to  no 
tice  that  all  the  manifold,  nnd  more  or  less  vague  and  uncer 
tain,  views  of  ethics,  of  government,  of  politics,  of  moral  qual 
ifications,  and  of  prohibited  crimes,  which  have  entered  into 
the  discussion  of  the  particular  transaction  whose  actual  pro 
portions  and  lineaments  have  been  di^plajed  before  the  Court 
and  Jury,  are,  in  their  nature,  affirmative  propositions,  meet 
ing  what  is  an  apparently  clear  and  simple  case  on  the  part  of 
the  Government,  and  requiring  to  be  encountered  on  our  part 
more  by  criticism  than  by  any  new  and  positive  representation 
of  what  the  law  is  which  is  to  govern  this  case  under  the  ju 
risprudence  of  the  United  States. 

I  shall  first  ask  your  honors'  attention  to  the  question  of 
jurisdiction,  which,  of  course,  separates  itself  from  all  the  fea 
tures  and  circumstances  of  the  particular  crime.  Your  hon 
ors  will  notice  that  this  question  of  jurisdiction  does  not,  in 
the  least,  connect  itself  with  the  subject  or  circumstances  of 
the  crime,  as  going  to  make  up  its  completeness,  under  the 
general  principles  which  give  the  locality  of  the  crime  as  the 
locality  of  the  trial.  With  these  principles,  whether  of  right 
and  justice,  or  of  convenience  for  the  adequate  and  complete 
ascertainment  of  the  facts  of  an  alleged  crime,  we  have  no  con 
cern  here.  The  crime  complained  of  is  one  which  has  no  lo 
cality  within  the  territorial  jurisdiction  of  the  United  States, 
and  assigns  for  itself,  in  its  own  circumstances,  no  place  of  trial. 
From  the  fact  that  the  crime  was  completed  on  the  high  seas, 
equally  remote,  perhaps,  from  any  District  the  Courts  of  which 
might  have  cognizance  of  the  transaction,  there  are  no  indica 
tions  whatever,  in  its  own  circumstances,  pointing  out  the  ju 
risdiction  for  its  trial.  It  is,  therefore,  wholly  with  the  Gov 
ernment,  finding  a  crime  which  gives,  of  itself,  no  indication 
of  where,  on  any  principle,  it  should  be  tried,  to  determine 
which  of  all  the  Districts  of  the  United  States  in  which  its 


OF  THE   SCHOONER   SAVANNAH.  171 

Courts  of  Judicature  are  open. — all  having  an  equal  judicial 
authority,  and  all  being  equally  suitable  in  the  arrangement 
of  the  judicial  establishment  of  the  Union, — it  is  entirely  com 
petent,  I  say,  for  the  Government  to  determine,  on  reasons  of 
its  own  convenience,  which  District,  out  of  the  many,  shall 
gain  the  jurisdiction,  and  upon  what  circumstances  the  com 
pleteness  of  that  jurisdiction  shall  depend. 

It  is  not  at  all  a  right  of  the  defendant  to  claim  a  trial  be 
fore  a  particular  tribunal,  nor  are  th  re  any  considerations 
which  should  prevent  the  selection  of  the  place  of  jurisdiction 
through  whatever  casual  agency  may  be  employed  in  that  se 
lection.  In  the  eye  of  the  law,  the  Judges  are  alike,  and  the 
Districts  are  alike.  Congress,  considering  the  matter  thus 
wholly  open,  in  order  that  there  might  be  no  contest  open  for 
all  the  Districts,  and  assuming  that  there  would  be  some 
natural  circumstance  likely  to  attend  the  bringing  of  the  of 
fender  within  the  reach  of  civil  process,  when  a  crime  had 
been  committed  outside  of  the  civil  process  of  every  nation,  de 
termined,  by  the  14th  section  of  the  Crimes  Act  of  March  3d, 
1825,  which  gives  the  law  of  jurisdiction  in  this  case,  that  the 
trial  should  be  "  had  in  the  District  where  the  offender  is  ap 
prehended,  or  into  which  he  may  be  first  brought."  Nor  is  it 
a  true  construction  of  th's  statute  to  say  that  the  law  intends 
that  the  cognizance  of  the  crime — all  of  the  Districts  being 
equally  competent  to  try  it,  and  there  being  nothing  in  the 
crime  itself  assigning  its  locality  as  the  place  of  trial — shall 
belong  exclusively  to  that  Court  which  shall  first  happen  to 
get  jurisdiction  by  the  actual  bringing  of  the  offender  within 
its  operation.  If  that  be  true,  it  is  apparent  that  neither  one 
of  the  Districts  thus  differently  described  has  jurisdiction  ex 
clusively  of  the  other.  Now,  the  language  of  the  statute  cer 
tainly  gives  this  double  place  of  trial  in  the  alternative ;  and 
it  is  very  difficult  to  say  what  principle  either  of  right,  of  con 
venience,  or  of  judicial  regularity,  is  offended  by  such  a  con 
struction  and  application  of  the  statute.  Accordingly,  I  un 
derstand  it  to  have  been  held  by  Mr.  Justice  Story,  in  the  case 
of  The  United  States  vs.  Thompson  (1  Sumner,  168),  that  there 
were  these  alternative  places  of  trial ;  and,  as  a  matter  of  rea 
soning,  he  finds  that  such  arrangement  is  suitable  to  the  gen 
eral  principles  of  jurisprudence,  and  to  the  general  purposes  of 
the  statute.  Now,  if  this  be  so,  then,  as  we  come,  in  this  Dis 
trict,  within  one  of  the  alternatives  of  the  statute,  and  as  this 
District  is  confessedly  the  one  in  which  the  apprehension  of 
the  offenders  took  place,  we  are  clear  of  any  difficulty  about 
jurisdiction. 

The  case  of  Hicks,  decided  here,  was,  perhaps,  not  entirely 
parallel  to  the  one  now  under  consideration.  But,  let  us  see 


172  TRIAL    OF  THE   OFFICERS   AND   CREW 

how  far  the  views  and  principles  there  adopted  go  to  deter 
mine  this  case,  in  the  construction  of  the  statute  in  any  of  its 
parts.  Hicks  had  committed  a  crime  on  the  high  seas — in  the 
immediate  vicinity,  I  believe,  of  our  own  waters.  Making  his 
way  to  the  land,  he  proceeded  unmolested  to  Providence,  in 
Rhode  Island.  The  officers  of  justice  of  the  United  States,  get 
ting  on  his  track,  pursued  him  to  Rhode  Island,  and  there  he 
was  found,  unquestionably  within  the  District  of  Rhode  Island. 
They  did  not  obtain  his  apprehension  by  legal  process  there, 
and  thus  bring  him  within  the  actual  exercise  of  the  power  of 
a  Court  of  the  District  of  Rhode  Island ;  but  they  persuaded 
him,  or  in  some  way  brought  about  his  concurrence,  to  come 
with  them  into  the  District  of  New  York,  and  here  the  process 
of  this  Court  was  fastened  upon  him,  and  he  was  brought  to 
trial  on  the  capital  charge  of  piracy.  On  a  preliminary  plea 
to  the  jurisdiction  of  the  Court,  and  on  an  agreed  state  of  facts, 
to  the  effect,  I  believe,  of  what  I  have  stated,  the  matter  was 
considerably  argued  before  your  honor,  Judge  Nelson,  on  be 
half  of  the  prisoner;  but  your  honor,  as  I  h'nd  by  the  report, 
relieved  the  District  Attorney  from  the  necessity  of  replying, 
considering  the  matter  as  settled,  under  the  facts  of  the  case, 
in  the  practice  of  the  Court.  Now,  the  argument  there  was, 
that  the  District  of  Rhode  Island  was  the  District  where  the 
offender  was  apprehended ;  and  it  could  not  be  contended  that 
the  Southern  District  of  New  York  was  the  one  into  which  he 
was  first  brought  by  means  other  than  those  of  legal  process. 
And  the  argument  was,  that  the  crime  for  which  he  was  to  be 
tried  here,  being  a  felony,  any  control  of  his  person  by  private 
individuals  was  a  lawful  apprehension,  and  one  which  might 
be  carried  out  by  force,  if  necessary ;  and  that,  therefore,  there 
was,  in  entire  compliance  with  the  requisition  of  the  statute,  an 
apprehension  within  the  District  of  Rhode  Island,  If,  under 
the  circumstances  of  that  case,  that  view  had  been  sustained 
by  the  Court,  it  could  not  have  been,  I  think,  pretended  that 
the  Courts  of  this  District  had  concurrent  jurisdiction,  because 
of  Hicks  having  been  first  brought  into  this  District.  The 
whole  inquiry  turned  on  the  question  whether  he  was  appre 
hended  in  the  District  of  Rhode  Island. 

In  considering  the  case,  your  honor,  Judge  Nelson,  recog 
nized,  as  I  suppose,  the  view  of  the  alternative  jurisdiction 
which  I  have  stated.  You  said  to  the  District  Attorney  :  "  We 
will  not  trouble  you,  Mr.  Hunt.  The  question  in  this  case  is 
not  a  new  one.  It  is  one  that  has  been  considered  and  decided 
by  several  members  of  the  Supreme  Court,  in  the  course  of  the 
discharge  of  their  official  duties.  It  has  repeatedly  arisen  in 
cases  of  offences  upon  the  high  seas,  and  the  settled  practice 
and  construction  of  the  Act  of  Congress  is,  that  in  such  cases 


OF   THE   SCHOONER   SAVANNAH.  173 

the  Court  has  jurisdiction  of  the  case,  in  the  one  alternative,  in 
the  District  into  which  the  offender  is  first  brought  from  the 
hi  i^li  seas — meaning,  into  which  he  is  first  brought  by  authority 
of  "law  and  by  authority  of  the  Government.  Jn  cases  where 
the  offender  has  been  sent  home  under  the  authority  of  the 
Government,  the  Courts  of  the  District  into  which  he  is  first 
brought,  under  that  authority,  are  vested  with  jurisdiction  to 
try  the  case.  The  other  alternative  is,  the  District  in  which  the 
prisoner  is  first  apprehended — meaning  an  apprehension  under 
the  authority  of  law — under  the  authority  of  legal  process. 
This  interpretation  of  the  Statute  rejects  the  idea  of  a  private 
arrest,  and  refers  only  to  an  arrest  under  the  authority  of  law 
and  under  legal  process.  It  is  quite  clear,  in  this  case,  that  no 
District  except  the  Southern  District  of  New  York  possesses 
jurisdiction  of  the  offence  ;  for  here  the  prisoner  was  first  appre 
hended  by  process  of  law.  We  do  not  inquire  into  anything 
antecedent  to  the  arrest  under  the  warrant  in  this  District,  be 
cause  it  has  no  bearing  whatever  upon  the  question  of  the  ju- 
ri>diction  of  the  Court.  We  have  no  doubt,  therefore,  that  the 
Court  has  jurisdiction  of  the  case,  and  that  this  is  the  only  Dis 
trict  in  which  the  prisoner  can  be  tried." 

Now  I  owe  the  Court  and  my  learned  friend,  Mr.  Lord,  an 
apology  for  having  supposed  and  stated  that  the  provisions  of 
the  Act  of  March  3d,  1819,  giving  certain  powers  to  the  naval 
officers  of  the  United  States  •'  to  protect  the  commerce  of  the 
United  States,"  as  is  the  title  of  the  Act,  were  not  now  in  force. 
I  was  misled.  The  Act  itself  was  but  temporary  in  its  charac 
ter,  being  but  of  a  year's  duration.  By  the  Act  of  May  15th, 
1820,  the  first  four  sections  of  the  Act  of  March  3d,  1819,  were 
temporarily  renewed.  But  afterwards,  by  the  Act  of  January 
30th,  1823,  those  tour  sections  were  made  a  part  of  the  perma 
nent  statutes  of  the  country.  The  substantial  part  of  the  Act 
of  March  3d,  1819,  namely,  the  fifth  section,  which  defined  and 
punished  the  crime  of  piracy,  was  repealed,  and  replaced  by  the 
Act  of  May  15th,  1820,  and  has  never  reappeared  in  our  stat 
utes. 

Judge  Nelson  :  It  is  the  fifih  section  of  the  Act  of  1819 
that  is  repealed. 

Mr.  Evarts:  Yes;  that  Act  is  found  at  page  510  of  the 
3d  volume  of  the  Statutes  at  Large. 

Mr.  Lord:  All  that  relates  to  the  apprehension  of  offend 
ers  is  in  force. 

Mr.  Evarts :  Yes  ;  that  is  all  in  force.  The  Act  is  entitled, 
"  An  Act  to  protect  the  Commerce  of  the  United  States,  and 
punish  the  Crime  of  Piracy."  The  first  section  provides,  that 


174:  TRIAL   OF   THE   OFFICERS   AND   CREW 

"  the  President  of  the  United  States  be,  and  hereby  is,  author 
ized  and  requested  to  employ  so  many  of  the  public  armed  ves 
sels  as,  in  his  judgment,  the  service  may  require,  with  suitable 
instructions  to  the  commanders  thereof,  in  protecting  the  mer 
chant  vessels  of  the  United  States  and  their  crews  from  pirat 
ical  aggressions  arid  depredations."  There  is  nothing  in  that 
section  which  is  pertinent  to  this  case.  The  second  section  pro 
vides,  "  that  the  President  of  the  United  States  be,  and  hereby 
is,  authorized  to  instruct  the  commanders  of  the  public  armed 
vessels  of  the  United  States  to  subdue,  seize,  take,  and  send  into 
any  port  of  the  United  States,  any  armed  vessel  or  boat,  or  any 
vessel  or  boat,  the  crew  whereof  shall  be  armed,  and  which 
shall  have  attempted  or  committed  any  piratical  aggression, 
search,  restraint,  depredation,  or  seizure,  upon  any  vessel  of  the 
United  States  or  of  citizens  thereof,  or  upon  any  other  vessel, 
and  also  to  retake  any  vessel  of  the  United  States  or  its  citi 
zens  which  may  have  been  unlawfully  captured  upon  the  high 
seas." 

This,  your  honors  will  notice,  is  entirely  confined  to  au 
thority  to  subdue  the  vessel  and  take  possession  of  it,  and  send 
it  in  for  the  adjudication  and  forfeiture  which  are  provided  in 
the  fourth  section. 

The  third  section  gives  the  right  to  merchant  vessels  to 
defend  themselves  against  pirates. 

There  is  nothing  in  the  Act  which  gives  to  the  officers  of  the 
Government  the  power,  or  enjoins  on  them  the  duty,  of  appre 
hending  the  pirates.  1  will  now  ask  your  honors'  attention  to 
the  distinction  between  this  Act  and  the  powers  conferred  by 
the  slave-trading  Act. 

Judge  Nelson:  The  Act  of  1819  gives  to  the  commanders 
authority  to  bring  home  prisoners, — does  it  not  ? 

Mr.  Evarts :  It  does  not,  in  terms,  say  anything  about 
them.  That  is  the  point  to  which  I  ask  your  honors'  attention. 
The  Act  instructs  the  commanders  of  public  armed  vessels  to 
subdue,  seize,  take,  and  send  into  any  port  of  the  United 
States,  any  armed  vessel  or  boat,  or  any  vessel  or  boat,  the 
crew  whereof  is  armed,  and  that  may  have  attempted  or  com 
mitted  any  piratical  aggression,  &c.  There  is  nothing  said  as 
to  the  arrest  of  the  criminals.  It  is  a  question  of  construction. 

Judge  Nelson  :  It  is  not  specific  in  that  respect. 

Mr.  Evarts:  No,  sir,  it  is  not  specific.  Now,  in  the  Act  of 
March  3d,  1819,  entitled,  "  An  Act  in  addition  to  the  Acts  pro 
hibiting  the  slave  trade,"  which  will  be  found  at  page  532  of  the 
3d  volume  of  the  Statutes  at  Large,  a  general  authority  is  given 
to  the  President,  "  whenever  he  shall  deem  it  expedient,  to  cause 
any  of  the  armed  vessels  of  the  United  States  to  be  employed 


OF  THE   SCHOONER   SAVANNAH.  175 

to  cruise  on  any  of  the  coasts  of  the  United  States  or  Territo 
ries  thereof,  or  on  the  coast  of  Africa,  or  elsewhere,"  "  and  to 
instruct  and  direct  the  commanders  of  all  armed  vessels  of  the 
United  States  to  seize,  take,  and  bring  into  any  port  of  the 
United  States,  all  ships  or  vessels  of  the  United  States,  where 
soever  found,"  engaged  in  the  slave  trade.  And  then  comes 
this  distinct  provision  in  reference  to  the  apprehension  and  the 
bringing  in  lor  adjudication  of  persons  found  on  board  of  such 
vessels.  It  is  the  last  clause  of  the  first  section :  "  And  pro 
vided  further,  that  the  commanders  of  such  commissioned 
vessels  do  cause  to  be  apprehended  and  taken  into  custody 
every  person  found  on  board  of  such  vessel  so  seized  and  taken, 
being  of  the  officers  or  crew  thereof,  and  him  or  them  convey, 
as  soon  as  conveniently  may  be,  to  the  civil  authority  of  the 
United  States,  to  be  proceeded  against  in  due  course  of  law,  in 
some  of  the  Districts  thereof." 

This  Act  is  the  one  referred  to  by  Judge  Sprague  in  the 
case  of  The  United  States  vs.  Bird  (Sprague 's  Decisions,  29^). 

Judge  Nelson :  There  is  limitation  to  that  Act,  is  there  ? 

Mr.  Evarts :  No,  sir;  it  is  unlimited  in  duration,  and  a 
part  of  the  law  now  administered.  Now,  I  need  not  ask  your 
honors'  attention  to  the  familiar  act  which  gives  to  Consuls  of 
the  United  States  direct  authority  to  take  offenders  into  custody 
and  detain  them,  and  send  them  by  the  first  convenient  vessel 
to  the  United  States,  to  be  delivered  to  the  civil  authorities  to 
be  proceeded  against. 

Now,  my  proposition  is  this, — that  neither  under  the  slave- 
trading  Act,  nor  under  the  Act  for  the  prevention  and  punish 
ment  of  piracy  passed  in  1819,  does  the  extra-territorial  seizure, 
control  and  transmission  of  offenders,  exclude  the  plain  teiwis 
of  the  alternative  of  the  statute,  which  makes  jurisdiction 
dependent,  not  on  apprehension  merely,  but  on  apprehension 
within  a  District ;  and  that,  even  though  there  is  a  governmental 
introduction  of  the  offender  into  a  District,  making  that  District, 
in  a  proper  sense,  the  one  into  which  he  is  first  brought,  yet  that 
does  not  in  the  least  displace  the  alternative  of  jurisdiction  of 
an  apprehension  within  a  District,  there  having  been  no  prior 
apprehension,  by  process,  within  any  other  District,  as  the  con 
summation  and  completion  of  the  delivery  of  the  offender  to  the 
civil  authorities  for  the  purpose  of  a  trial,  the  transaction  hav 
ing  been  instituted  on  the  high  seas  or  in  a  foreign  port. 

Now,  on  the  facts  in  this  case,  there  is  no  room  for  disputing 
that  the  first  apprehension  was  within  this  District.  Nor  can 
I  deny  that  the  seizure  of  these  persons  on  the  high  seas  was 
made  by  an  armed  vessel  of  the  United  States,  either  under 
the  general  right  which  the  law  of  nations  gives  both  to  pub 
lic  and  private  vessels  to  seize  pirates,  or  under  the  implied 


1T6  TRIAL   OF   THE    OFFICERS    AND    CREW 

right  anrl  power  to  do  so,  certainly  so  far  as  to  make  it  justifi 
able  on  the  part  of  commanders  of  cruisers,  by  virtue  of  the 
provision  of  the  Act  of  1819  which  authorizes  them  to  send  in 
a  piratical  vessel.  These  men  were  sent  in,  in  the  course  of 
such  active  intervention,  by  an  armed  vessel  of  the  United 
States.  But  I  submit  to  your  honors,  that  the  provisions  of 
that  Act,  which  thus  incidentally  include,  as  it  were,  the  trans 
mission  of  the  ship's  company  of  a  pirate,  because  they  are  to 
be  subdued,  and  the  ship  is  to  be  sent  in,  cannot  be  turned,  by 
any  process  of  reasoning,  into  anything  that  can  be  called  a 
legal  apprehension.  I  am  satisfied  that  your  honor,  Judge 
Nelson's  view,  that  the  term  "  apprehension"  is  only  meant  to 
apply  to  the  service  of  judicial  process  within  a  District,  is  en 
tirely  sound. 

The  principal  argument  and  the  principal  authority  relied 
on  to  displace  the  jurisdiction  thus  plainly  acquired  under  one 
alternative  of  the  statute,  denies,  really,  that  there  is  nny  alter 
native,  or  that  there  can  possibly  be  two  Districts,  either  one 
of  which  may  rightfully  have  jurisdiction.  That,  1  take  it,  is 
the  substance  of  the  proposition.  It  is,  that  the  alternative 
gives  to  one  of  the  two  exclusive  jurisdiction  ;  and  that,  when 
ever  facts  have  occurred — whether  jurisdiction  has  been  exer 
cised  or  not — which  give  to  the  one  District  jurisdiction  and 
an  opportunity  to  exercise  it,  then,  by  the  prior  concurrence  of 
all  the  circumstances  which  fix  the  statutory  jurisdiction  on 
that  District,  the  possibility  of  the  occurrence  of  any  new  cir 
cumstances  to  give  jurisdiction  in  the  other  and  alternative 
District  is  displaced. 

The  case  of  The  United  States  vs.  Town  send  has  been 
brought  to  your  honors'  attention  in  the  manuscript  record  of 
the  preliminary  proceedings.  The  prisoner,  who  had  been 
taken  and  brought  into  Key  West,  where  the  vessel  stopped, 
as  we  are  told,  for  the  temporary  purpose  of  supplies,  was 
thence  brought  into  Massachusetts.  It  is  the  record  of  a  pro 
ceeding  wherein  Judge  Sprague,  with  the  concurrence  of  his 
associate,  Mr.  Justice  Clifford,  of  the  Supreme  Court,  sent  the 
prisoner,  in  that  predicament,  back  to  Key  West  for  trial,  and 
would  not  permit  an  indictment  to  be  found  against  him  in 
the  District  of  Massachusetts.  We  have  no  knowledge  of  the 
facts  of  that  case,  except  what  are  contained  in  this  record. 
Now,  your  honors  will  notice,  in  the  first  place,  that  this  is  not 
a  judicial  determination  as  to  the  right  of  jurisdiction  of  the 
Massachusetts  Court,  necessarily ;  but  that,  on  the  theory  which 
I  present,  that  there  are  two  alternative  jurisdictions,  it  may 
have  been  only  a  prudent  and  cautious  exercise  of  the  discre 
tion  of  that  Court,  preliminary  to  indictment,  that  this  man 
should  be  sent,  on  his  own  application,  to  the  District  of  Flor- 


OF    THE    SCHOONER    SAVANNAH.  177 

ida  for  trial.  In  other  words,  he  interposed  an  objection  that 
he  was  entitled  to  a  trial  in  Key  West;  and  the  Court,  affirm 
ing  the  opinion  that  that  District  had  jurisdiction  of  the  crime, 
determined  that  it  would  send  him  there  for  trial,  and  that  it 
would  not  exercise  its  own  jurisdiction,  which  might  be  made 
subject  to  some  question.  And  yet  it  is  not  t  >  be  denied  that 
Judge  Sprague  is  apparently  of  the  opinion  that  there  are  not 
two  alternative  places  of  jurisdiction,  neither  one  exclusive  of 
the  other;  but  that  they  are  only  alternative  as  respects  the 
one  or  the  other  which  is  the  first  to  gain  jurisdiction.  It  is  a 
little  difficult  to  see,  on  this  view,  how  there  can  be  any  two 
places,  rightfully  described  as  separate  places,  one  of  which  is 
the  place  into  which  the  prisoner  is  first  brought,  and  the  other 
of  which  is  the  place  where  he  is  first  apprehended;  because, 
in  the  very  nature  of  the  case,  the  moment  you  raise  the  point 
that  the  offender  has  been  in  two  Districts,  and  that  in  the 
latter  of  them  he  is  apprehended,  then  it  follows  that  he  has 
passed  through  the  former ;  and  the  statute  is  really  reduced  to 
this — that  the  offender  must  be  indicted  in  the  District  into 
which  he  is  first  brought.  There  cannot  then  be  two  different 
Districts,  into  one  of  which  he  is  brought,  within  the  meaning 
of  the  law,  and  in  the  other  of  which  lie  is  apprehended  ;  be 
cause,  that  into  which  he  is  first  brought  must  necessarily  pre 
cede,  in  time,  that  in  which  he  is  first  apprehended,  and  he 
could  not  have  been  apprehended  before,  in  a  District  other 
than  that  into  which  he  is  first  brought.  So  that  you  neces 
sarily  reduce  the  statute  to  a  fixing  of  the  place  of  trial  in  the 
District  into  which  the  offender  is  first  brought. 

The  case  of  Smith — the  trial  just  terminated  in  Philadel 
phia,  in  which  the  prisoner  was  tried  and  convicted  before  the 
Circuit  Court  of  the  United  States — is  an  authority  of  the 
two  Judges  of  that  Court  on  this  very  point,  the  circumstances 
of  a  prior  introduction  of  the  prisoner  within  the  Eastern  District 
of  V  irginia  being  much  more  distinct  than  in  this  case.  The 
capturing  vessel  was  a  steamer,  which  t»ok  the  prize  into 
Hampton  Roads.  The  defendant  and  the  others  of  the  prize 
crew  were  kept  as  prisoners  on  board  this  war  steamer,  which, 
after  anchoring  in  Hampton  Roads,  near  Fortress  Monroe, 
went  a  short  distance  up  the  Potomac,  returned,  and  a^ain 
anchored  in  Hampton  Roads,  after  which  she  brought  the 
prisoners,  including  the  defendant,  into  Philadelphia,  where 
they  were. taken  into  the  custody  of  the  Marshal.  Now,  un 
questionably,  geographically,  that  prisoner  was  within  the  State 
of  Virginia,  and  within  the  Eastern  District  of  Virginia,  rather 
more  distinctly  than  in  the  case  now  on  trial.  In  that  case,  the 
Court  said — '*  One  of  the  points  of  law  on  which,  counsel  for 
the  defence  requests  instruction  to  the  Jury  is,  that  the  Court 
12 


178  TRIAL    OF   THE    OFFICERS  AND    CREW 

has  no  jurisdiction  of  the  case  ;  because,  after  his  apprehension 
on  the  high  seas,  he  was  first  brought  into  another  District, 
meaning  the  Eastern  District  of  Virginia,  and  ought  to  be 
there  tried.  This  instruction  cannot  be  given.  When  he  was 
taken  prisoner,  and  was  detained  in  the  capturing  vessel,  he 
was  not  apprehended  for  trial,  within  the  meaning  of  the  Act 
of  Congress.  His  first  apprehension  for  that  purpose,  of  which 
there  is  any  evidence,  was  at  Philadelphia,  after  his  arrival  in 
this  District.  Whether  he  had  been  previously  brought  into 
another  District,  within  the  meaning  of  the  Act,  is  immaterial" 
— recognizing  the  doctrine  of  two  alternative  jurisdictions, 
neither  exclusive  of  the  other.  "  It  has  been  decided  that, 
under  tliia  law,  a  person,  first  brought  into  one  District,  and 
afterwards  apprehended  in  another,  may  be  tried  in  the  latter 
District.  Therefore,  if  you  believe  the  testimony  on  the  sub 
ject,  this  Court  has  jurisdiction  of  the  case." 

Now,  your  honors  very  easily  understand,  that  without  any 
election  or  purpose  on  the  part  of  any  authority,  civil  or 
naval,  representing  the  Government,  a  prisoner  may  be  brought 
into  a  District,  yet  never  come,  in  any  sense,  under  the  judi 
cial  cognizance  of  that  District.  In  this  case,  these  prisoners 
might  have  escaped  from  the  Harriet  Lane,  and  have  fled  to 
Massachusetts,  or  Pennsylvania,  or  wherever  else  their  fortune 
should  have  carried  them,  and  might  there  have  been  first 
apprehended.  Now,  what  is  there  in  the  nature  of  the  juris 
prudence  of  the  United  States,  in  respect  of  a  crime  committed 
outside  of  both  Districts,  which  should  prevent  the  jurisdiction 
of  Massachusetts  being  just  as  effective  as  the  jurisdiction  of 
New  York?  If  such  be  the  law,  I  have  no  occasion  to  argue 
any  further.  But  the  decision  of  Judge  Sprague  is,  in  my 
judgment,  quite  opposed  to  that  view  of  the  law  ;  and  I,  must, 
therefore,  present  to  your  honors  some  considerations  which, 
in  my  judgment,  make  this  the  District,  in  the  intendment  of 
the  statute,  into  which  these  offenders  were  first  brought,  as 
well  as  the  District  in  which  they  were  first  apprehended. 

The  alleged  prior  introduction  of  these  persons  within  any 
other  Judicial  District  of  the  United  States,  within  the  mean 
ing  of  the  statute,  is  shown  by  the  evidence  of  what  occurred 
in  reference  to  the  transit  of  the  Minnesota,  after  she  had  taken 
them  on  board  from  the  capturing  vessel,  the  Perry,  off  the 
coast  of  South  Carolina.  She  anchored  off  Fortress  Monroe,  just 
opposite  Hampton  Road?,  and  there  transferred  these  prisoners 
to  the  Harriet  Lane,  which  brought  them  into  this  District. 

Now,  it  is  said  that  that  incident  of  the  anchorage  of  the 
Minnesota  in  or  near  Hampton  Roads,  and  the  transhipment 
of  the  prisoners  to  another  vessel,  which  the  exigencies  of  the 
naval  service  sent  to  New  York,  did  fulfill  the  terms  of  the  law 


OF   THE   SCHOONER   SAVANNAH.  179 

in  reference  to  the  introduction  of  those  offenders  within  a  Dis 
trict  of  the  United  States,  and  that  they  were,  therefore,  first 
brought  into  the  Eastern  District  of  Virginia;  and.  if  that  cir 
cumstance  displaces  the  alternative  jurisdiction,  and  thereby 
Virginia  became  the  exclusive  District  of  jurisdiction,  this  trial 
cannot  be  valid,  and  must  result  in  some  other  disposition  of 
these  prisoners  than  a  verdict  of  guilty,  if,  on  the  merits  of  the 
case,  such  a  verdict  should  be  warranted. 

What  are  the  traits  and  circumstances  of  that  transmission? 
I  understood  my  learned  friend,  Mr.  Lord,  to  concede  that  he 
would  not  argue  that  the  mere  transit  of  the  keel  of  the  vessel 
transporting  the  prisoners,  in  the  course  of  its  voyage  to  a  port 
of  destination,  through  the  waters  of  another  District,  was  an 
importation  or  introduction  of  the  offenders  into  that  District, 
so  as  to  make  it  the  place  of  trial.  Take,  for  instance,  the  case 
of  a  vessel  making  a  voyage  from  Charleston  to  New  York. 
For  aught  I  know,  certainly,  within  the  practicability  of  navi 
gation,  her  course  may  be  within  a  marine  league  of  the  shore 
of  North  Carolina,  of  the  shore  of  Virginia,  of  the  shore  of  Ma 
ryland,  and  of  the  shore  of  New  Jersey,  before  making  the  port 
which  is  the  termination  of  her  transit.  Well,  my  learned 
friends  say  that  they  do  not  claim  that  this  local  position  of  a 
vessel  within  a  marine  league  while  she  is  sailing  along,  is, 
within  any  sensible  view  of  the  statute,  an  introduction  into  the 
District,  so  as  to  found  a  jurisdiction. 

Let  us  see,  if  your  honors  please,  whether  the  transit  of 
these  prisoners  from  the  capturing  vessel  to  the  Marshal's  office 
in  New  York  was  not  simply  part  of  the  continuous  voyage  of 
the  vessel  from  one  point  to  the  other.  Where  was  the  Minne 
sota,  and  on  what  employment  and  duty,  at  the  time  she  re 
ceived  these  prisoners  on  board?  She  was  the  flagship,  as  the 
Commodore  has  told  us,  of  the  Atlantic  Blockading  Squadron, 
and  her  whole  duty  was  as  a  cruiser  or  blockading  ship,  at  sea, 
in  discharge  of  the  duty  assigned  to  her. 

I  take  it  for  granted  that  my  learned  friends  will  not  con 
tend  that  a  vessel,  pursuing  her  voyage  continuously  along  the 
coast  of  North  Carolina  and  the  coast  of  Virginia,  introduces  an 
offender  within  a  District  by  stopping,  either  under  any  stress 
of  navigation,  or  for  any  object  unconnected  with  any  purpose 
to  terminate  her  voyage,  or  that  the  fact  of  her  being  becalmed, 
or  of  her  having  anchored  off  the  coast  to  get  water  or  supplies, 
and  having  then  pursued  her  voyage  continuously  to  New  York, 
would  alter  the  character  of  the  transit,  in  any  legal  construc 
tion  that  it  should  receive. 

Now,  what  did  the  Minnesota  do  ?  The  Commodore  took  the 
prisoners  on  board  that  vessel,  as  he  tells  you,  for  the  purpose 
of  sending  them  to  New  York  by  the  first  naval  vessel  that  he 


180  TRIAL   OF   THE   OFFICERS   AND   CREW 

should  be  able  to  detach  from  the  service.  Did  he,  in  the  in 
terval  between  the  capture  and  the  complete  transmission  and 
reception  of  the  prisoners  here,  ever  make  a  port  or  a  landing 
from  his  vessel,  or  ever  depart  from  the  design  of  the  voyage 
on  which  he  was  engaged  ?  ]STo.  He  was  on  his  cruise,  bound 
to  no  port,  always  at  sea,  and  only  in  such  relations  to  the  land 
as  the  performance  of  his  duty  to  blockade  at  such  points  as  he 
saw  fit,  whether  at  Charleston  or  the  Capes  of  Virginia,  re 
quired  him  to  be  in.  And  there  is  no  difference,  in  the  quality 
of  the  act.  arising  from  his  having  stopped  at  Hampton  Roads, 
and  thence  sent  forward  the  prisoners  by  the  Harriet  Lane,  be 
cause  she  was  the  first  vessel  that  was  going  to  New  York — 
going,  as  has  been  stated,  for  a  change  of  her  armament  and 
for  repairs. 

Now,  I  submit  to  your  honors,  that  there  is  nothing,  either 
in  the  design  or  the  act  of  this  blockading  vessel,  the  Minne 
sota,  or  of  the  Harriet  Lane,  that  causes  the  course  of  trans 
mission  of  these  prisoners  to  the  point  of  their  arrest  in  this 
District  to  differ  from  what  it  would  have  been  if,  with  an 
even  keel,  and  without  any  interruption,  the  capturing  vessel, 
the  Perry,  had  started  for  New  York,  and  had,  in  the  course  of 
her  navigation,  come  within  the  line  of  a  marine  league  from 
the  shore  of  some  District  of  the  United  States,  and  had,  per 
chance,  anchored  there,  for  the  purpose  of  replenishing  her 
supplies  for  the  voyage.  In  other  words,  in  order  to  make 
out,  within  the  terms  of  the  statute,  a  bringing  into  a  District 
of  the  United  States,  so  as  to  make  it  a  District  of  jurisdiction, 
within  the  sense  of  the  statute,  it  is  impossible  for  the  Court 
to  fail  to  require  the  ingredient  of  a  voyage  into  a  port,  at  least 
as  a  place  of  rest  and  a  termination  of  the  passage  of  the  ves 
sel,  temporary  or  otherwise.  That  is  requisite,  in  order  to 
make  an  introduction  within  a  District.  And  I  cannot  imagine 
how  his  honor,  Judge  Sprague,  or  his  honor,  Judge  Clifford, 
could,  in  the  case  before  them,  have  given  any  such  significance 
to  the  prior  arrival  of  the  vessel  of  the  United  States  at  Key 
West;  for,  it  was  but  a  stopping  at  an  open  roadstead  for  the 
purpose,  not  of  a  port,  but  of  continuing  at  sea  or  in  the  sea 
service  of  the  country. 

Your  honors  will  notice  that,  by  such  a  construction  of 
the  Act,  instead  of  making  the  place  where  jurisdiction  shall 
be  acquired  dependent  on  some  intelligent  purpose,  in  the  dis 
cretion  of  the  officers  who  control  the  person  of  the  prisoner, 
as  to  where  he  shall  be  landed,  you  make  the  question  of  juris 
diction  dependent  upon  the  purest  accident  in  the  navigation 
of  the  vessel.  Thus,  in  this  particular  case,  the  Captain  of  the 
Minnesota  tells  us  he  had  not  coal  enough  to  come  directly  to 
New  York,  if  he  had  designed  to  do  so,  and  that  he  stopped  at 


OF   THE   6CIIOONEB    SAVANNAH.  181 

his  blockading  station  and  sent  the  prisoners  on  by  another 
vessel,  which  the  exigencies  of  the  service  required  to  make 
the  voyage. 

There  is  another  proposition  upon  this  question  of  jurisdic 
tion  which  I  deem  it  my  duty  to  make  to  your  honors,  although 
I  suppose  the  whole  matter  will  be  disposed  of  on  considera 
tions  which  have  been  presented  on  one  side  or  the  other,  and, 
as  I  suppose,  in  favor  of  the  jurisdiction.  Yet  I  cannot  but 
think  that  the  rules  of  jurisprudence  and  the  regular  and 
effective  administration  of  criminal  justice  will  suffer  if  these 
questions  are  to  be  interposed  and  to  be  passed  upon  by  the 
Court  at  the  same  time  as  the  indictment  itself.  Where  the 
question  of  the  locality  of  the  trial  forms  no  part  of  the  body 
of  the  crime,  and  has  nothing  to  do  with  the  place  where  the 
crime  was  committed,  but  is  wholly  a  question  of  the  local 
position  of  the  prisoner,  then  the  exception  to  the  jurisdiction 
can  only  be  taken  as  a  preliminary  plea,  or  in  the  shape  of  a 
plea  in  abatement.  That  was  the  construction  in  the  Hicks 
case,  and  is  the  general  rule  in  reference  to  jurisdiction  in  civil 
cases  which  are  dependent  upon  the  proper  cognizance  of  the 
person  of  the  defendant.  I  reter  to  the  cases  of  Irvine  vs.  Lowry, 
(14  Peters,  2:.J3  ;)  Shtppard  vs.  Graves,  (14  Howard,  505  ;)  and 
&  Wolf  vs.  Rabaud,  (1  Piters,  476.) 

Mr.  Larocque ;  I  ask  what  particular  point  is  decided  by 
those  cases? 

Mr.  Evarts:  They  are  wholly  on  the  point  that  where  the 
jurisdiction  of  a  Court  of  the  United  States  depends,  not  on  the 
subject  matter  of  the  suit,  but  on  the  District  where  the 
defendant  is  found,  or  on  the  citizenship  of  the  parties,  an 
objection  to  the  jurisdiction  must  be  taken  by  a  plea  in 
abatement. 

Mr.  Larocque:  But  suppose  it  depends  upon  the  place 
where  the  crime  was  committed,  whether  in  New  York  or 
Ohio,  whether  on  land  or  at  sea? 

Mr.  Eoarts:  It  is  not  necessary  to  ask  that  question,  for  I 
have  expressly  excluded  that  consideration  by  the  preliminarjr 
observation,  that  the  locality  of  the  trial  forma  no  part  of  the 
body  of  the  crime.  In  this  case,  the  crime  having  been  com 
mitted  outside  of  any  locality,  it  is  wholly  a  question  of  the 
regularity  and  legality  of  the  means  whereby  the  criminal  has 
been  brought  into  the  jurisdiction — nothing  else. 

Mr.  Larocque :  Does  the  counsel  cite  these  cases  to  show 
that  want  of  jurisdiction  must  be  pleaded  in  abatement  ? 

Mr.  Evarts:   It  is   the  rule  in  civil  cases.    Now,  your 


182  TRIAL   OF   THE   OFFICERS   AND   CREW 

honors  will  see  that  the  question  forms  no  part  of  the  issue  of 
guilty  or  not  guilty. 

Mr.  Larocque :  Will  you  look  at  the  last  averment  in  your 
indictment? 

Mr.  Evarts :  I  repeat,  that  it  forms  no  part  of  the  body  of 
the  crime,  and  no  part  of  the  issue  of  guilty  or  not  guilty,  that 
is  to  be  determined  by  the  Jury.  If  the  Jury,  upon  the  issue 
of  guilty  or  not  guilty,  should  pass  upon  the  question  as  to 
what  District  the  defendant  had  been  first  brought  into,  or  as 
to  what  District  he  was  apprehended  in,  and  should  find  that 
this  Court  had  no  jurisdiction,  he  would  be  entitled  to  an 
acquittal  on  that  ground,  and  that  acquittal  would  be  plead- 
able  in  bar  if  he  were  put  on  trial  in  the  proper  District ;  for, 
there  is  no  mode,  that  I  know  of,  of  extricating  this  part  of  the 
issue  from  the  issue  on  the  merits  of  the  case,  when  it  is  deci 
ded  by  a  verdict.  There  is  no  possibility  of  discriminating  in 
the  verdict.  There  is  no  special  verdict  and  no  question  re 
served.  It  is  a  verdict  of  not  guilty.  And,  therefore,  on  the 
question  of  regularity  of  process,  the  crime  itself  is  disposed 
of — the  whole  result  of  the  judicial  investigation  being  that 
the  trial  should  have  been  in  another  District. 

But,  where  the  locality  of  the  crime  forms  a  part  of  its  body, 
of  course,  the  Govemment,  undertaking  to  prove  a  crime  to 
have  been  committed  within  a  District,  rightly  fails  it'  the 
crime  is  shown  not  to  have  been  committed  within  that 
District. 

Mr.  Larocque:  And  then  can  they  not  try  it  where  it  was 
committed  ? 

Mr.  Evarts:  I  should  not  like  to  be  the  District  Attorney 
who  would  try  it. 

Now,  if  the  Court  please,  upon  the  matters  connected  with 
the  merits  of  this  trial,  the  first  proposition  to  which  I  ask  your 
honors'  attention  is — that  the  Act  ',f  April  30th,  1790,  in  the 
sections  relating  to  piracy,  is  constitutional,  and  that  the  evi 
dence  proves  the  crime  as  to  all  the  prisoners  under  the  eighth 
section,  and  as  to  the  four  citizens  under  the  ninth  section.  The 
crime  is  also  charged  end  proved  against  all  the  prisoners 
under  the  third  section  of  the  Act  of  May  loth,  1820. 

I  do  not  know  that  your  honors'  attention  has  been  drawn 
to  the  distinction  between  the  eighth  section  of  the  Act  of 
1790  and  the  third  section  of  the  Act  of  1820.  The  counts 
in  the  indictment  cover  both  statutes,  and  both  statutes  are  in 
force.  The  words  of  the  eighth  section  of  the  Act  of  1790 
are  these : 

"If  any  person  or  persons  shall  commit,  upon  the  high  seas,"  "murder  or 


OF   THE    SCHOONER    SAVANNAH.  183 

robbery,"  "every  such  offender  shall  be  deemed,  taken  and  adjudged  to  be  a 
pirate  and  felon,  and,  being  thereof  convicted,  shall  suffer  death." 

The  whole  description  of  the  crime  is  "  murder  or  robbery" 
"  upon  the  high  seas." 

The  third  section  of  the  Act  of  1820  a  ids  to  that  simple 
description  of  criminality  certain  words  not  at  all  tautological, 
but  making  other  acts  equivalent  to  the  same  crime.  Ihe  sec 
tion  provides  that,  "  if  any  person  shall,  upon  the  high  seas,  or 
in  any  haven,  &c.,  commit  the  crime  of  robbery  in  or  upon 
any  ship  or  vessel,  or  upon  any  of  the  ship's  company  of  any 
ship  or  vessel,  or  the  lading  thereof,  such  peison  shall  be  ad 
judged  to  be  a  pirate,  and,  being  thereof  convicted,"  "shall 
suffer  death."  Beyond  the  simple  word,  "  robbery,"  is  added, 
"  in  or  upon  any  ship  or  vessel,  or  upon  any  of  the  ship's  com 
pany  of  any  ship  or  vessel,  or  the  lading  thereof." 

Judge  Nelson:  The  fifth  section  of  the  Act  of  March  3d, 
1819,  provides  for  piracy  on  the  high  seas  according  to  the  law 
of  nations.  The  previous  Act  of  1790,  and  the  third  section 
of  the  Act  of  ISiiO,  prescribe  the  punishment  of  the  crimes  of 
murder  and  robbery  on  the  high  sea?. 

The  District  Attorney:  The  Act  of  1820  does  not  refer  to 
murder,  only  to  robbery  on  the  high  seas. 

Judge  Nelson :  It  denominates  as  a  pirate  a  person  guilty 
of  robbery  on  the  high  seas. 

Mr.  Evarts:  But  the  body  of  the  crime  is  the  robbery,  an  d 
not  the  epithet. 

Mr.  Brady :  That  is  the  question. 

Mr.  Evarts:  But,  in  the  fifth  section  of  the  Act  of  1819,  the 
provision  is,  that  "if  any  person  shall,  on  the  high  seas,  com 
mit  the  crime  of  piracy  as  defined  by  the  law  of  nations." 

Judge  Nehon:  That  is  a  different  offence. 

Mr.  Evarts :  Yes,  and  is  open  always  to  the  inquiry,  what 
the  law  of  nations  is. 

Now,  that  Act  of  1790  is,  we  say,  constitutional.  And  here 
I  may  as  well  say  what  seems  to  be  necessary  in  reference  to 
the  point  made  by  Mr.  Brady  on  behalf  of  the  prisoners.  He 
will  contend,  he  says,  that  the  ninth  section  of  the  Act  of  1790 
is  beyond  the  constitutional  power  of  Congress — its  constitu 
tional  power  in  the  premises  being  limited,  as  he  supposes,  to 
the  right  to  define  and  punish  the  crime  of  piracy. 

Mr.  Brady  :  "  And  offences  against  the  law  of  nations." 

Mr.  Evarts :  To  that  explicit  clause  in  the  Constitution. 
Now,  your  honors  will  notice  what  the  crime  in  the  ninth 


184  TRIAL   OF   THE    OFFICERS    AND    CREW 

section  of  the  Act  of  1790  is.  It  is  not  piracy  so  described, 
nor  robbery  so  described  merely,  but  it  is  a  statutory  defini 
tion  of  the  crime,  which  includes  a  particular  description  and 
predicament  of  the  offender  (the  eighth  section  having  included 
all  persons),  and  also  defines  the  subject  of  the  robbery,  or  the 
object  of  the  piratical  aggression.  It  is  this:  "If  any  citizen 
shall  commit  any  piracy  or  robbery  aforesaid,  or  any  act  of 
hostility  against  the  United  States,  or  any  citizen  thereof,"  &c. 
" Piracy  or  robbery  aforesaid"  would,  uf  course,  include  the 
definition  of  the  crime  as  embraced  in  the  eighth  section.  But, 
the  ninth  section  proceeds  to  add  a  new  and  substantive  com 
pleteness  of  crime,  not  described  either  as  piracy  or  robbery, 
to  wit :  "  Or  any  act  of  hostility  against  the  United  States,  or 
any  citizen  thereof,  upon  the  high  seas,  under  color  of  any  com 
mission  from  any  foreign  Prince  or  State,  or  on  pretence  of 
authority  from  any  person,  such  offender  shall,  notwithstand 
ing  the  pretence  of  any  such  authority,  be  deemed,  adjudged, 
and  taken  to  be  a  pirate,  felon,  and  robber,  and,  on  being  thereof 
convicted,  shall  suffer  death." 

Now,  it  is  quite  immaterial  whether  this  statute  is  accurate 
in  declaring  the  offender  to  be  "  a  pirate,  felon,  arid  robber." 
It  has  made  the  offence  a  crime.  Under  what  restrictions 
has  it  made  it  a  crime?  Has  it  undertaken  to  extend 
the  jurisdiction  of  the  Federal  Government,  as  supported  by 
the  law  of  nations  respecting  piracy,  which  is  a  right  on  the 
part  of  every  nation  to  legislate  not  only  for  its  own  citizens — 
not  only  in  protection  of  its  own  property — but  in  punishment 
of  all  pirates,  of  whatever  origin,  and  in  protection  of  all  prop 
erty  on  sea,  and  wherever  owned?  Now  that, undoubtedly,  is 
the  jurisdiction  under  the  law  of  nations,  and  neither  by  the 
Constitution  has  Congress  received  any  greater  power  under 
the  law  of  nations  than  that,  nor,  1  respectfully  submit,  can  it 
receive  any  greater  power  under  the  law  of  nations ;  that  is, 
Congress  cannot  receive  any  power  greater  than  that  which 
other  nations,  not  bound  by  our  municipal  statutes,  would  be 
bound  to  respect,  as  sustained  by  the  law  of  nations.  Now  I 
agree  that  "any  act  of  hostility  against  the  United  States,  or 
any  citizen  thereof,"  would  not  necessarily  be  up  to  the  grade 
and  of  the  quality  of  piracy  under  the  law  of  nations;  and 
that  the  Congress  of  the  United  States,  in  undertaking  to 
make  laws  which  would  create  an  offence,  and  punish  it 
as  piracy,  which  was  not  piracy  by  the  law  of  nations,  and 
in  seeking  to  enforce  its  jurisdiction  and  inflict  its  sanctions 
on  a  people  who  owed  it  no  municipal  obedience,  and  in 
protection  of  property  over  which  it  had  no  municipal  control, 
and  no  duty  to  perform,  could  not  control  foreign  nations ;  and 
that  foreign  nations  would  not  be  bound  to  respect  convictions 


OF  THE   SCHOONER   SAVANNAH.  185 

obtained  under  snch  a  municipal  extension  of  our  law  over 
persons  never  subject  to  us,  and  in  respect  to  property  never 
under  our  dominion. 

And  thus  your  honors  see  that,  just  in  proportion  as  the 
nintli  section  has  extended  the  crime,  it  has  limited  both  the 
persons  to  whom  the  statute  is  applied,  and  the  property  in  re 
spect  of  which  the  crime  is  defined.  It  is  wholly  limited  to 
our  own  citizens,  subject  to  whatever  laws  we  choose  to  make 
for  our  own  government,  and  in  respect  of  the  marine  proper 
ty  of  the  United  States,  and  of  its  citizens  when  at  sea,  which, 
by  every  rule  of  the  extension  or  limit  of  municipal  authority, 
is  always  regarded,  on  general  principles  of  public  jurispru 
dence,  as  a  part  of  the  property  and  of  the  territory  of  the  na 
tion  to  which  the  ship  and  cargo  belung,  wherever  it  may  be 
on  the  high  seas. 

Now,  this  ninth  section,  I  suppose,  if  yonr  honors  please, — and 
such  I  understand  to  be  the  views  of  Judge  Sprague,  as  ex 
pressed  by  him  to  the  Grand  Jury,  at  Boston, — proceeds  and  is 
supported  on  the  general  control  given  by  the  Constitution  to 
Congress  over  all  external  commerce,  which,  I  need  not  say, 
must,  to  be  effective,  extend  to  the  criminal  jurisprudence 
which  protects  against  wrong,  and  the  criminal  control  which 
punishes  crime  perpetrated  by  our  citizens  on  our  own  com 
merce  on  the  high  seas.  My  learned  friend  would  certainly 
not  contend  that  the  different  States  had  this  authority  in  ref- 
ere::ce  to  crimes  on  the  high  seas.  And,  if  they  have  not  that 
authority,  then,  between  these  jurisdictions,  we  should  have 
omitted  one  of  the  most  necessary,  one  of  the  most  ordinary, 
one  of  the  wisest  and  plainest  duties  of  Governments  in  regard 
to  the  protection  of  their  commerce.  For,  it  is  idle  to  say  that 
there  are  no  crimes  which  may  be  committed  at  sea  which  are 
not  piracy,  and  that  there  is  no  protection  needed  for  our  own 
commerce  against  our  own  citizens  which  does  not  fall  within 
the  international  law  of  piracy. 

Mr.  Brady :  I  ask  Mr.  Evarts'  permission  to  make  a  sug 
gestion  upon  this  point,  which  it  is  due  to  him.  and  to  myself, 
also,  that  I  should  present,  that  I  may  hear  his  views  in  respect 
to  it.  I  would  ask  the  learned  gentleman,  and  the  Court,  to 
suppose  the  case  of  an  American  citizen  who,  on  the  breaking 
out  of  a  war  between  the  United  States  and  England,  should 
be  residing  in  England  as  a  denizen,  and  who  had  resided  there 
for  many  years,  and  who  should  take  a  commission  for  priva 
teering  from  the  British  Government,  regularly  issued,  having 
about  it  all  the  sanctions  belonging  to  such  an  authority,  and 
who,  in  the  prosecution  of  a  war,  should  take  an  American 
prize, — would  he  be  liable  to  be  convicted  in  the  Courts  of  the 


186  TRIAL    OF   THE   OFFICES    AND   CKEW 

United  States  of  piracy  or  robbery,  under  the  act  of  1790  ? 
He  clearly  would,  on  its  language.  And  then  the  question  oc 
curs — Had  Congress  any  authority  to  pass  such  a  law? 

Now,  I  will  put  a  case  which  is  stronger,  and  which  comes 
equally  within  the  plain  terms,  purview,  and  spirit  of  that  Act, 
upon  a  literal  construction.  Suppose  that  two  American  ves 
sels  should  come  into  collision  on  the  Pacific  Ocean,  each 
manned  and  officered  exclusively  by  American  citizens,  and, 
an  angry  feeling  being  engendered,  the  Captain  of  one  of  them 
should  direct  a  sailor  to  throw  a  belaying-pin  at  the  Captain 
of  the  other,  and  the  sailor  should  do  it.  That  would  clearly 
be  an  act  of  hostility  against  one  citizen  of  the  United  States 
perpetrated  by  another,  and  would  be  perpetrated  under  pre 
tence  of  authority  from  a  person,  to  wit,  the  Captain  of  the 
ship  who  gave  the  violent  order.  Would  the  sailor  be  liable  to 
a  conviction  for  that  offence,  as  a  pirate  or  robber?  and  would 
Congress  have  the  authority  to  pass  such  a  law  ?  I  doubt  it 
very  much. 

Mr.  JEvarts:  I  agree  with  my  learned  friend  that  the  case 
which  he  first  stated  is  not  only  within  the  words,  but  within 
the  intent,  of  the  ninth  section. 

Mr.  Brady :  That  an  American  citizen  cannot  take  a  com 
mission  from  a  foreign  Government  without  being  a  pirate  ? 

Mr.  Evarts :  To  serve  against  the  United  State?,  he  certain 
ly  could  not ;  arid,  if  the  law  of  nations  and  the  rights  of  citi 
zens  require  that  a  Government  which  demands  allegiance  and 
repays  it  by  protection  cannot  make  penal  the  taking  of  service 
from  a  foreign  power  against  itself,  I  do  not  know  what  a  Gov 
ernment  can  do.  So  much  for  the  general  right  or  power  of  a 
Government.  If  the  particular  and  clipped  interpretation  of 
our  Constitution  has  shorn  our  Government  of  that  first,  clear 
est,  and  most  necessary  power,  why,  very  well.  Such  a  result 
follows,  not  from  that  power  or  its  exercise  being  at  variance 
with  the  general  principles  or  powers  of  Government,  but  be 
cause,  as  I  have  said,  in  the  arrangement  of  the  Government, 
there  has  fallen  out  of  the  general  fund  of  sovereignty  this  plain, 
and  clear,  and  necessary  right. 

But,  on  the  second  instance  which  my  learned  friend  has  put, 
I  am  equally  clear  in  saying,  that  the  case  he  there  suggests  is 
not  within  the  statute  of  1790,  simply  because,  although  by  a 
forced  and  literal  construction,  if  you  please,  about  which  I 
will  not  here  quarrel,  my  learned  friend  thinks  he  places  it 
within  the  general  terms  of  the  ninth  section,  yet  I  imagine 
your  honors  will  at  once  come  to  the  conclusion,  which  seems 
to  my  poor  judgment  a  sensible  one,  that  the  case  he  puts  has 


OF   THE   SCHOONER   SAVANNAH.  187 

nothing  to  do  with  the  subject  matter  of  the  statute,  within  its 
intent  or  purpose — and  that,  simply,  because  the  statute  has 
not  chosen  to  cover  the  case  proposed,  by  applying  to  it  so  ex 
travagant  a  penalty.  It  is  not  from  any  defect  in  the  power 
of  Congress.  Congress  does  punish  just  such  an  offence  as  the 
one  suggested,  whenever  the  weapon  and  the  assault  make  it 
of  the  gravity  of  offences  to  which  Congress  has-  chosen  to  ap 
ply  its  penal  legislation.  The  statute  covering  such  an  offence 
is  enforced  every  day  in  this  Court.  And,  certainly,  I  do  not 
need  to  argue  that,  if  Congress  had  the  right  to  pass  a  statute 
prohibiting  an  assault  with  a  belaying-pin,  it  had  the  right  to 
call  the  onence  piracy,  if  it  pleased,  and  might  punish  it  by 
hanging,  if  it  saw  n't ;  and,  fur  that,  it  is  not  amenable  to  the  law 
of  nations,  nor  is  its  power  exercised  with  reference  to  piracy 
under  the  law  of  nations  when  it  deals  with  that  class  of  of 
fences. 

I  certainly  do  not  need  to  fortify  my  answer  to  the  case  first 
put  by  my  learned  friend,  in  regard  to  the  right  of  a  nation  to 
punish  its  citizens  for  taking  service  against  its  own  country 
and  commerce,  by  the  practice  or  the  legislation  of  other  na 
tions.  But  your  honors  will  find,  in  the  statutes  of  Great  Brit 
ain — the  statutes  of  11  and  12  William  III.,  and  2  George  II. — 
precisely  the  same  exercise  of  power  and  authority,  and  to  the 
same  extent,  as  respects  the  gravity  of  the  crime  and  the  pun 
ishment  prescribed  for  it.  And  it  would  seem  to  me  to  be  one 
of  the  plainest  rights  and  most  necessary  duties  of  the  Govern 
ment,  if  its  attention  is  called  to  any  proclivity  of  its  citizens 
to  take  service  against  itself,  to  punish  them  not  as  prisoners 
of  war,  and  not  under  the  laws  affecting  privateers. 

Mr.  Brady :  I  will  only  mention  to  you  that,  when  I  argue 
the  question  hereafter,  and  answer  your  suggestions,  I  will 
refer  to  the  case  of  The  United  States  v \  Smith,(5  Wheaton, 
153,)  where  Mr.  Webster  conceded,  in  the  Federal  Court,  that 
this  original  Act  defining  piracy  was,  as  respects  the  language 
I  have  referred  to,  not  a  constitutional  exercise  of  the  power 
conferred  on  Congress.  He  took  the  ground  that  the  statute 
made  a  general  reference  to  the  law  of  nations  as  defining 
piracy,  whereas,  in  his  view,  Congress  should  have  proceeded 
to  state  what  were  the  elements  of  the  offence.  I  want  to  use 
that,  in  my  argument,  as  an  illustration  of  how  strictly  the 
Courts  have  held  that  it  was  never  intended  that  even  the 
case  of  taking  a  commission  in  a  foreign  service  and  making 
war  against  the  United  States,  which  might  be  treason,  should 
be  converted  into  piracy  by  any  necromancy  or  alchemy  of 
the  law,  such  as  the  gentleman  seems  to  have  in  view. 

Mr.  Evarts :  Whenever  a  statute  declares  an  offence  to  be 


188  TRIAI.    OF   THE    OFFICERS    AND   CKEW 

a  certain  offence,  that  offence  the  Courts  must  hold  it  to  be. 
The  nomenclature  of  the  Legislature  is  not  to  be  quarreled 
with  by  the  Courts  which  sit  under  its  authority.  They  are 
to  see  that  the  crime  is  proved.  What  the  crime  is  called  is 
immaterial. 

Mr.  Brady  :  Then  the  Legislature  might  say  that  speaking 
offensive  words  on  the  high  seas  by  our  citizens  is  piracy. 

Mr.  Evarts  :  They  can  call  it  piracy,  and  punish  it. 
Mr.  Brady :  Yes,  by  death ! 

Mr.  Evarts :  It  does  not  come  under  the  law  of  nations  as 
piracy,  but  under  the  general  control  of  Congress  over  our  citi 
zens  at  sea.  In  other  words,  no  nation  depends,  in  the  least,  on 
the  law  of  nations  and  its  principles  for  the  extent  of  its  control 
over  its  own  citizens  on  the  high  seas,  or  for  the  extent  of  the 
penalties  by  which  it  protects  its  own  commerce  against  the 
acts  of  its  own  citizens  on  the  high  seas.  It  takes  cognizance 
of  such  offences  by  the  same  plenary  power  by  which  it  takes 
cognizance  of  offences  on  land.  The  difference  with  us  would 
be,  that  the  State  government  would  have  the  control  of  these 
offences  when  committed  on  the  land,  as  a  general  rule,  and 
they  would  come  within  the  Federal  jurisprudence  and  the 
Federal  legislation  only  by  their  being  committed  on  the  high 
seas.  Now,  what  was  said  by  Mr.  Webster  in  the  case  of  The 
United  States  v.  Smith,  a  case  arising  under  the  Act  of  1819? 
Mr.  Webster  argued  that  the  special  verdict  did  not  contain 
sufficient  tacts  to  enable  the  Court  to  pronounce  the  prisoner 
guilty  of  the  offence  charged — that  his  guilt  could  not  be  ne 
cessarily  inferred  from  the  facts  found,  but  that  they  were,  on 
the  contrary,  consistent  with  his  innocence — but  that,  even 
supposing  the  offence  to  have  been  well  found  by  the  special 
verdict,  it  could  not  be  punished  under  the  Act  of  1819,  be 
cause  that  Act  was  not  a  constitutional  exercise  of  the  power 
of  Congress  to  define  and  punish  piracy, — that  Congress  was 
bound  to  define  it  in  terms,  and  was  not  at  liberty  to  leave  it 
to  be  settled  by  judicial  interpretation.  That  was  Mr.  Webster's 
criticism  upon  the  statute — that  while  the  Constitution  had 
said  that  the  law  must  define  what  was  piracy,  Congress  had 
left  it  to  the  Courts  to  define.  Mr.  Justice  Story  delivered  the 
opinion  of  the  Supreme  Court  in  that  case,  to  the  effect,  that 
the  crime  of  piracy  was  constitutionally  defined  by  the  Act 
of  Congress,  and  the  point  was  so  certified  to  the  Circuit 
Court. 

The  authority  which  this  Court  has  for  punishing  the  crime 
which  has  come  under  consideration  in  this  case  is  the  law  of 
the  United  States,  supported  by  the  Constitution  of  the  United 


OF   THE   SCHOONER   SAVANNAH.  189 

States,  in  respect  to  both  branches  of  the  statute  under  inquiry. 
As  the  indictment  follows  the  law,  and  the  law  follows  the  Con 
stitution,  the  subject  for  your  cognizance  is  rightfully  here,  and 
the  proofs  and  the  evidence  in  the  case  show  that  the  crime 
has  been  committed,  and  that  the  acts  of  the  prisoners  which 
resulted  in  the  seizure  of  the  Joseph  on  the  high  seas  include 
all  the  ingredients  that  enter  into  the  completeness  of  the  crime 
of  robbery  on  the  hi<rh  seas,  as  named  in  the  eighth  section  of 
the  Act  of  17i>0,  and  in  the  third  section  of  the  Act  of  1820. 
lam  confining  myself,  in  these  observations,  to  the  crime  of  the 
whole  twelve,  not  affected  by  the  question  of  citizenship,  and 
not  falling  under  the  ninth  section  of  the  Act  of  1790. 

It  is  certainly  not  necessary  for  me  here  to  insist,  with  much 
of  detail,  *>n  the  question  of  the  completeness  or  effect  of  the 
evidence  as  showing  that  the  seizure  of  the  Joseph  w-as  attended 
by  all  the  circumstances  of  force,  and  was  stimulated  by  all  the 
purposes  of  robbery,  which  the  law  makes  an  ingredient  of  this 
offence.  So  far  as  the  sufficiency  of  the  evidence  is  to  pass  un 
der  the  judgment  of  the  Jury,  it  is  entirely  out  of  place  for  me 
to  comment  on  it  here.  And,  so  far  as  any  purpose  of  instruc 
tion  to  the  Jury  by  your  honors  requires  any  consideration 
now,  it  is  sufficient  for  me  to  say,  that  there  is  no  trait  of  vio 
lence,  and  threat,  and  danger  which,  within  the  law  of 
robbery, — and  the  law  of  piracy,  if  there  be  any  difference, — 
makes  up  the  necessary  application  of  force,  that  is  not  pres 
ent  here.  And  I  understand  my  learned  friend,  Mr.  Lord, 
to  concede,  that  there  was  force  enough  to  make  up  the  crime, 
if  the  element  of  intent,  the  vicious  purpose  of  robbery,  was 
present,  as  part  of  the  body  of  the  crime. 

My  learned  friends  have  treated  this  latin  phrase,  ammo 
furandi)  as  if  it  meant  aninw  fruendi — as  if  the  point  was, 
not  the  intent  to  despoil  another,  but  the  intent  to  enjoy  the 
fruits  of  the  crime  themselves.  Now,  I  need  not  say  that  a 
man  who  robs  his  neighbor  to  give  the  money  to  charity, 
despoils  him,  animo  furandi,  just  as  much  as  if  he  did  it  with 
the  intention  of  using  the  money  for  his  own  purposes  of 
pleasure  or  profit.  Tnat  is  the  point,  and  all  the  cases  cited 
only  touch  the  question  of  whether,  in  the  violent  taking,  or 
the  fraudulent  taking,  imputed  as  a  crime,  there  could  be  sup 
posed  by  the  Jury  to  be,  on  any  evidence  introduced,  any 
honest  thought,  even  the  baseless  notion,  on  the  part  of  the 
offender,  that,  the  property  was  not  that  of  the  man  from  whom 
he  took  it,  but  was  his  own.  I  have  not  seen  anything  in  this 
evidence  which  should  lead  us  to  suppose  that  Mr.  Baker  and 
hi^  crew  thought  that  this  vessel,  the  Joseph,  belonged  to  them, 
and  that  they  took  her  under  a  claim  of  right,  as  property  of 
their  own.  The  right  under  which  they  acted  was  a  supposed 


190  TRIAL    OF  THE    OFFICERS    AND    CREW 

right  to  make  it  their  own,  it  then  and  there  being  the  property 
of  somebody  else — to  wit,  of  the  United  States  of  America,  or 
of  some  of  its  citizens.  So,  your  honors  will  find,  that  except 
so  far  as  the  considerations  of  the  moral  quality  of  this  crime, 
in  regard  to  its  not  being  furtive  and  stealthy,  are  raised  and 
supported  by  the  general  considerations  which  are  to  change 
this  transaction  from  its  private  quality  and  description  into  a 
certain  public  dignity,  as  part  of  a  wider  contest,  and  which 
considerations  are  to  be  disposed  of  by  the  views  which  your 
honors  may  take  of  the  affirmative  proposition  of  the  defence, 
which  would  make  this  privateering  at  least  an  act  of  hostility 
in  flagrant  war — except  so  far,  1  say,  as  these  considerations  are 
concerned,  I  need  not  say  anything  more  as  to  the  complete 
ness  of  the  ingredients,  both  of  force,  and  of  fobbery  or 
despoiling  another,  necessary  to  make  up  the  crime. 

We  come,  now,  if  the  Court  please,  to  a  variety  of  consider 
ations,  many  of  them,  I  think,  not  at  all  pertinent  to  a  judicial 
inquiry;  many  of  them  ethical;  many  of  them  political ;  many 
of  them  addressed  to  the  consciences  of  men ;  and  many  of 
them  addressed  to  the  policy  of  Governments — and  which,  in 
the  forum  where  they  are  debatable,  and  which  for  the  most 
part  is  a  forum  which  can  never  make  a  decision,  may  be  use 
ful  and  interesting.  Some  of  them  do  approach,  doubtless,  the 
substance  and  shape  of  legal  propositions ;  and  I  am  sure  I  do 
no  injustice  either  to  the  nature,  or  purpose,  or  character  of 
these  manifold  views,  when  I  say  that  they  all  centre  on  the 
proposition,  that  this  transaction,  which,  in  its  own  traits  and 
features  as  a  private  act  of  these  parties,  is  a  crime  of  piracy, 
is  transferred  into  the  larger  range  of  a  conflict  of  force,  au 
thorized  by  the  laws  of  war,  and  with  no  arbiter  and  no 
avenger,  but  in  the  conscience,  and  before  the  common  Judge 
of  all.  Now,  if  the  Court  please,  the  legal  notion  to  which 
we  must  bring  this  down,  is  this — that  the  acts  here  com 
plained  of  are,  within  the  law  and  jurisprudence  which  this 
Court  administers,  acts  of  privateering,  not  falling  within  the 
law  of  piracy. 

Now,  what  is  privateering?  My  learned  friends  have  spoken 
of  privateering  as  if  it  were  one  of  the  recognized,  regular,  suit 
able  public  methods  of  carrying  on  hostilities  between  nation?, 
and  as  if  it  fell  within  the  general  protection  which  makes 
combatants  in  the  field,  fighting  as  public  enemies,  and  against 
public  enemies,  amenable  only  to  the  laws  of  war.  And  my 
learned  friend,  Mr.  Lord,  has  read,  with  much  satisfaction,  the 
very  pointed  observations  made  by  Mr.  Marcy  in  his  letter  to 
the  French  Minister,  which  were  very  just  and  very  appropri 
ate  as  a  home  argument  against  France ;  that  is,  the  encomi 
ums  of  certain  French  commanders  on  the  dignity  and  nobility 


OF   THE   SCHOONER    SAVANNAH.  191 

of  the  conduct  of  privateers  who  rushed  to  the  aid  of  their 
country  when  at  war.  Now,  my  view,  and  I  believe  the  view 
of  the  law  books  and  of  the  publicists  of  the  present  day,  is 
this — that  privateering  is  the  last  relic  of  the  early  and  bar 
barous  notions  of  war,  that  a  trial  of  force  between  nations  in 
volved  a  rightful  exercise  of  personal  hostility  by  every  indi 
vidual  of  one  nation  against  every  individual  of  the  other,  and 
against  every  portion  of  the  property  of  the  other.  That  law 
of  war  which  authorizes  the  attack  on  peaceful  persons  by 
armed  bands  on  land,  and  the  robbery,  devastation,  and  de 
struction  of  private  property  wherever  it  may  be  found,  has 
been  long  since  displaced  by  those  principles  of  humanity,  of 
necessity,  and  of  common  sense,  which  make  war  an  appeal, 
when  there  is  no  other  arbiter,  to  the  strength  of  the  parties, 
to  be  determined  with  as  little  injury  to  property  and  life  as 
possible.  NOWT,  privateers  have  never  been  looked  upon  as 
being  themselves  entitled  to  the  least  comparison  with  the 
regularly  enrolled  military  power,  or  with  the  regular  naval 
service,  in  respect  to  their  motives,  or  the  general  rules  of  their 
conduct,  or  the  general  effect  which  their  depredations  are 
expected  to  produce.  And  the  tendency  of  all  movements  in 
the  public  laws  of  nations,  as  af&cting  the  maintenance  of  war, 
has  been  at  least  to  discourage  and  to  extirpate,  if  possible,  this 
private  war  on  sea,  in  both  of  its  forms — to  wit,  in  the  form  of 
public  armed  vessels  taking  private  and  peaceable  property  on 
sea,  and  in  the  still  more  aggravated  form  of  private  armed 
vessels,  with  crews  collected  for  the  purposes  of  gain  and  plun 
der,  under  the  license  which  war  may  give.  So  far  from  this 
Government  having,  on  the  general  principles,  moral  and  social, 
which  should  govern  such  a  discussion,  desired  to  maintain  or 
extend  privateering,  it  was  among  the  first  and  the  earliest  to 
concede  in  its  treaties,  and  to  gain  from  the  other  contracting 
parties  the  concession,  that  if  war  should  arise  between  the 
parties  to  the  treaty,  privateers  should  not  be  commissioned  or 
tolerated  on  either  side.  And,  if  this  Government  has  failed  to 
yield  to  the  attempt  made  on  the  part  of  certain  European 
powers  to  crush  this  single  branch  of  private  war  on  the  ocean, 
to  wit,  war  by  private  parties  on  the  ocean,  it  has  only  been 
because  it  saw  that  that  design,  not  including  the  destruction 
of  that  other  branch  of  private  war  at  sea — the  war  of  public 
vessels  against  private  property — was  not  a  design  clearly 
stimulated  by  the  purposes  and  interests  of  humanity.  While 
the  European  Governments  chose  to  destroy  that  branch 
which  was  least  important  to  them — the  use  of  private  armed 
vessels— they  claimed  to  continue  in  full  force  the  right  of  pub 
lic  armed  vessels  to  make  aggressions  on  private  property  on 
every  sea.  The  one  point  was  quite  as  important  to  have  ame- 


192  TRIAL  OF  THE   OFFICERS  AND   CREW 

liorated  as  the  other,  which  permits  us  to  recruit  the  small 
navy  which  our  republican  institutions  justify  us  in  maintain 
ing,  by  the  vigor  of  our  mercantile  marine  in  the  time  of  naval 
war.  Therefore,  there  is  nothing  in  the  history  of  the  country 
which  can,  in  the  least,  support  the  idea  that  we  look  witn 
favor  on  the  notion  of  privateering. 

Some  sensible  observations  upon  the  subject  are  to  be  found 
on  marginal  page  97,  in  the  first  volume  of  Kent's  Commenta 
ries,  to  which  I  ask  your  honors'  attention : 

"  Privateering,  under  all  the  restrictions  which  have  been  adopted,  is  very 
liable  to  abuse.  The  object  is  not  fame  or  chivalric  warfare,  but  plunder  and 
profit.  The  discipline  of  the  crews  is  not  apt  to  be  of  the  highest  order,  and 
privateers  are  often  guilty  of  enormous  excesses,  and  become  the  scourge  of 
neutral  commerce.  They  are  sometimes  manned  and  officered  by  foreigners, 
having  no  permanent  connection  with  the  country  or  interest  in  its  cause." 

I  agree  that  there  is  still  left,  under  the  license  and  protec 
tion  ot  the  law  of  nations,  the  prosecution  of  hostilities  on  the 
high  seas  by  privateers  and  private  armed  vessels.  And  I 
agree  that,  although  the  crime  proved  in  this  case  does  come 
within  the  description  and  punishment  of  robbery  and  piracy, 
in  its  own  actual  traits  and  features,  yet  if  it  be  shown  that 
what  is  thus  made  piracy  and  robbery  by  the  statute  was  actu 
ally  perpetrated  by  a  privateer,  under  the  protection  of  the  law 
of  nations,  with  a  commission  from  a  sovereign  nation,  within 
the  scope  of  the  authority  of  that  commission,  it  is  an  answer 
to  an  indictment,  the  terms  of  which  had  been  otherwise  proved. 
And  that  is  undoubtedly  what  is  claimed  here.  You  have 
proved  piracy  and  robbery  under  the  eighth  section,  say  these 
defendants,  if  we  cannot  impart  to  the  circumstances  and  feat 
ures  of  this  crime  some  public  quality  and  authority  which 
saves  the  transaction  from  condemnation  and  punishment. 

Mr.  Brady :  We  say  no  such  thing.  We  say  that,  if  they 
acted  in  good  faith,  however  mistaken,  and  though  the  commis 
sion  may  be  void,  they  have  not  committed  any  offence  what 
ever. 

Mr.  Evarts :  This  is  the  extent  of  my  concession,  as  matter 
of  law, — that  it  is  an  answer  to  a  charge  of  piracy  which  is  oth 
erwise  complete,  that  the  crime  was  committed  under  condi 
tions  which,  by  the  law  of  nations,  relieve  it  from  punishment. 
Now,  what  are  the  conditions  that  the  law  of  nations  requires  ? 

First,  there  must  be  a  war.  We  do  not  allow  private  armed 
vessels  to  prosecute  general  marauding  hostilities  in  support  of 
the  views  of  their  Governments.  We  do  not  allow  the  interrup 
tion  of  the  freedom  of  the  seas  by  such  marauding  vessels,  ex 
cept  in  cases  of  flagrant  war,  which  neutral  nations  are  com 
pelled  to  recognize. 


OF   THE    SCHOONER   SAVANNAH.  193 

Secondly.  The  privateer  must  have  received  its  commission 
from  a  public,  national,  sovereign  power.  You  cannot  make 
a  privateer,  and  turn  private  acts  that,  by  the  law  of  nations 
and  by  municipal  law,  are  piratical,  into  acts  of  war,  which 
are  of  the  same  intrinsic  quality  and  have  the  force  of  national 
acts,  unless  by  this  sine  qua  non  of  public  authority  and  adop 
tion. 

Now,  if  the  Court  please,  when  it  comes  up  for  judicial 
inquiry,  whether  a  case  of  privateering,  under  the  law  of  na 
tions,  is  fairly  made  out,  and  where  the  case  arises  during 
flagrant  war  between  two  separate,  independent,  established 
nations,  whose  nationality  is  a  part  of  the  order  of  things  in 
the  world,  the  Court  has  only  really  to  inquire,  judicially,  into 
two  subjects — whether  the  vessel  had  a  lawful  privateer's  com 
mission  from  one  of  the  contending  parties — and  whether  the 
acts  committed  by  her  were  within  its  scope,  either  actually 
or  in  the  sense  of  a  fair  construction  of  the  authority,  and  of 
good  faith  in  the  exercise  of  the  power.  But,  even  in  these  cases, 
where  the  only  points  are,  whether  there  be  war,  and  whether 
there  be  nationalities  on  each  side  which  can  convey  this  public 
authority,  the  Court  is  all  the  while  governed  by,  dependent 
upon,  and  subordinate  to,  the  views  of  the  Government  from 
which  the  Court  derives  its  authority.  No  judicial  tribunal 
has  a  right  to  recognize  a  nation,  of  its  own  motion.  No  ju 
dicial  tribunal  has  authority  to  recognize  a  Government  which 
the  Government  from  which  it  derives  its  authority  does  not 
recognize.  I  have  never  heard  it  proposed,  as  a  view  either 
of  public  or  of  domestic  law,  that  when  a  Government  has 
declined  to  recognize  a  nation,  it  was  within  the  jurisdiction  of 
a  Court  of  that  Government  to  determine  differently,  and 
reverse  the  decision  of  the  political  power.  In  the  cases  of 
France  and  England,  which  are  recognized  Governments  that 
have  placed  themselves  as  firmly  among  the  nations  of  the 
world  as  private  individuals  are  planted  in  the  rights  of  man, 
our  Courts  intermit  this  inquiry.  A  privateer  of  England 
which  confines  itself  within  the  scope  of  its  commission,  can 
not  be  proceeded  against  as  a  pirate,  although  it  commits  acts 
which  would  of  themselves  be  piracy.  But,  there  do  arise 
questions  which  come  under  the  jurisdiction  of  the  Courts, 
under  circumstances  of  doubt  and  obscurity  as  to  the  course  or 
view  which  our  Government  has  taken  in  relation  to  the  alleged 
nationalities  of  alleged  belligerents ;  and  I  need  not  say  to 
your  honors,  that  by  an  unbroken  series  of  the  decisions  of  the 
Supreme  Court,  as  well  as  by  the  necessary  subordination  of 
the  judicial  authority  to  the  political  power  of  the  Govern 
ment,  our  Courts  always  take  the  view  which  their  Government 
takes  in  respect  to  struggles  and  hostilities  which  arise  between 
13 


194  TRIAL   OF   THE   OFFICERS    AND   CREW 

uncertain,  indefinite  and  unascertained  powers.  Thus,  when 
ever  there  occur,  between  Colonies  and  the  parent  Government, 
— between  disaffected  regions  or  populations  and  the  sovereign 
to  which  they  have  been  subject — dissensions  which,  arising 
from  the  region  of  discontent,  sedition  and  turbulent  disorder, 
reach  the  proportion  of  military  conflict  and  appeal  to  arms, 
then,  when  acts  in  the  nature  of  war  are  assumed  to  be  per 
formed,  under  circumstances  that  bring  them  within  judicial 
cognizance  in  our  Courts,  and  in  the  Courts  of  any  other  civil 
ized  nation,  as  to  whether  they  still  retain  their  quality  and 
character  of  private  acts,  attended  by  the  private  responsibility 
of  the  criminals,  or  whether  they  are  transferred  to  the  wider 
theatre  and  looser  responsibility  of  warlike  engagement,  our 
Courts,  as  do  the  Courts  of  other  civilized  nations,  look  to  the 
Government  to  see  what  is  its  policy  and  its  purpose.  The 
instances  in  which  these  unhappy  contests  and  these  obscure 
questions  have  been  presented  before  the  Courts,  have  been 
almost  entirely  connected  with  the  separation  of  the  South 
American  Colonies  from  the  mother  country  of  Spain.  In  all 
these  cases,  the  new  Governments  of  the  revolted  Colonies  gave 
commissions  to  privateers,  and  undertook  to  put  themselves 
before  the  nations  of  the  world  as  belligerents,  claiming  from 
neutral  nations,  not  a  recognition  of  their  independence,  or  of 
their  completed  nationality,  but  of  their  right  to  struggle, 
through  the  forms  of  force  and  war,  to  establish  that  nation 
ality.  They  presented  to  the  discretion  and  the  policy  of 
every  other  civilized  Government  precisely  this  question — Is 
there  enough  of  substance,  of  good  faith,  of  power,  to  justify 
us,  as  equal  expounders  and  equal  defenders  and  protectors  of 
the  laws  of  nations,  although  there  be  now  no  present  national- 
ality  that  can  support,  under  the  rules  of  the  law  of  nations, 
by  mere  right,  the  exercise  of  warlike  powers  —  is  there 
enough,  in  the  transaction,  to  justify  us  in  considering  it  to  be 
so  substantial  and  bona  fide  an  effort  for  the  assertion  of  inde 
pendence  and  the  creation  of  a  new  nation,  that  we  shall  give 
to  it  the  opportunity,  and  turn  what  would  be  piracy  and  ma 
rauding  into  an  act  of  belligerents,  so  far  as  we  neutrals  are 
concerned  ? 

When  a  nation  is  an  independent  nation,  all  other  nations  of 
the  earth  are,  by  public  law,  bound  to  recognize  it,  and  bound 
to  recognize  its  right  to  make  war.  The  must  powerful  nation 
in  the  world  has  no  more  right  to  make  war  than  the  smallest 
nation  in  the  world  ;  and,  each  being  judge  of  its  own  conduct, 
when  a  state  of  war  exists,  such  war  must,  by  the  public  law 
of  the  world,  be  recognized.  But  when  new,  unformed,  in 
choate,  tentative  consolidations  or  efforts  of  nationalities  pre 
sent  themselves,  every  nation  has,  by  the  public  law,  a  right 


OF    THK    SCHOONER    SAVANNAH.  195 

to  exercise  its  own  wisdom,  its  own  policy  and  its  own  sense  of 
justice,  to  determine  whether  or  not  it  will  recognize  them  ; 
and,  in  every  one  of  the  cases  I  have  referred  to  tliat  came  be 
fore  our  Courts,  arising  tor  their  consideration  as  between  two 
parts  of  a  foreign  country,  our  Courts  said — Our  Government 
has  done  so  and  so ;  it  has  recognized  them  as  belligerents,  and 
we  follow  our  Government.  In  other  cases,  as  in  that  of  the 
Commander  Aury,  the  Court  said — We  do  not  understand  that 
there  is  any  such  power  known  in  the  world ;  our  Government 
has  never  in  any  way  recognized,  not  its  independence,  for 
that  is  not  necessary,  but  its  position  as  a  war-making  power, 
or  as  a  struggling  power,  fighting  for  nationality,  and  we  can 
not  recognize  that  condition  of  things. 

Now,  unhappily,  there  arises  a  conflict  in  our  own  country, 
which  presents  the  case  of  an  armed  military  rebellion — a  re 
volt  of  certain  portions  of  population,  maintaining,  if  you 
please,  to  a  certain  extent,  the  mastery  over  a  certain  portion 
of  our  soil,  using  against  us  the  actual  means  and  processes  of 
war,  and  compelling  from  our  Government,  in  maintaining 
dominion  against  their  aggressive  assaults,  the  means  of  military 
power,  naval  and  land  forces,  and  all  the  authority  and  vio 
lence  of  war.  Foreign  nations  have  had,  in  regard  to  us  and 
to  this  conflict,  the  same  kind  of  questions  presented  that  have 
been  presented  to  us  in  the  contests  between  the  dismembered 
parts  of  other  countries.  And  every  nation  was  free  to  deter 
mine,  upon  this  exact  question  of  the  right  of  private  war,  as 
belonging  to  those  rebellious  portions  of  this  country — to  deter 
mine  whether  it  would  tolerate  privateering  as  a  warlike  pro 
ceeding,  or  would  regard  privateers  as  marauders  or  pirates 
without  just  right  or  cause,  and  without  the  pretence  of  suffi 
cient  force  and  dignity,  in  a  movement  to  disturb  the  peace  of 
the  world. 

My  learned  friends  have  said,  using  the  force  of  the  argu 
ment  in  aid  of  their  cause,  that  France  and  England  have 
recognized  the  insurgents  as  belligerents,  and  have  precluded 
themselves  from  treating  as  pirates  private  armed  vessels  that 
shall  derive  authority  from  these  rebellious  powers.  Well,  by 
the  same  law  of  nations  that  gave  to  France  and  England  this 
right  thus  to  elect,  they  had  the  right  to  determine,  and  to 
announce  by  proclamation,  that  the  peace  of  the  world  upon 
the  ocean  should  not  be  disturbed,  under  pretence  of  war, 
by  these  insurgents,  and  that,  if  they  should  resort  to  private 
armed  vessels  to  inflict  aggressions  and  disturb  the  commerce 
of  the  world,  they  would  be  treated  as  pirates.  And  if,  under 
the  law  of  nations,  the  political  authorities  of  France  and 
England  had  thus  announced  their  policy  that  these  insurgents 
should  be  treated  as  pirates,  I  would  like  to  know  if  advocates 


196  TRIAL    OF    THE    OFFICERS    AND    CREW 

would  be  heard,  in  the  Court  of  Queen's  Bench  or  in  the  Courts 
of  France,  to  urge  that  the  Court,  wiser  than  its  Government, 
should,  in  the  exercise  of  sovereign  discretion  under  the  law  of 
nations,  tolerate,  as  an  act  of  war,  what  is  piracy  by  municipal 
statute  or  the  law  of  nations,  unless  accredited  as  part  of  a 
warlike  movement.  Would  those  Courts  permit  the  defence  to 
be  made,  that  what  were  declared  to  be  acts  of  piracy  were 
acts  of  war, — the  Government  having  so  elected  and  so  an 
nounced,  that  it  would  regard  them  as  acts  of  piracy  and  not 
as  acts  of  war  ? 

Now,  1  am  arguing  this  case  altogether  on  this  point,  as  if 
the  Government  from  which  this  Court  derives  its  authority — 
whose  laws  we  are  administering — whose  authority  is  vested  in 
your  honors  on  this  trial — stood  as  a  stranger  to  and  spectator 
of  this  contest,  and  it  was  really  a  controversy  between  parts  of 
another  nation.  And  all  1  have  claimed  is,  that  our  Govern 
ment,  in  common  with  the  other  nations  of  the  world,  has,  by 
the  law  of  nations,  the  right,  in  its  discretion,  to  determine  how 
this  proceeding  shall  be  treated,  and  what  consequences  shall 
follow  from  it.  Now,  I  need  not  say  that,  treating  our  Govern 
ment  as  if  it  stood  ab  extra,  and  as  if,  passing  its  judgment  on 
what  was  going  on,  it  had  determined  that  these  privateers 
should  be  regarded  as  pirates,  they  should  not  be  recognized  as 
having  the  right  of  war,  or  the  right,  as  an  inchoate  nationality, 
to  perfect  their  independence. 

The  Proclamation  of  the  President  of  the  United  States,  of  the 
19th  of  April,  1861,  is  a  complete  and  perfect  denunciation  of 
this  threatened  crime  of  piracy,  the  purpose  to  recur  to  which 
had  been  manifested  by  a  public  declaration  of  Jefferson  Davis, 
which  had  invited,  from  all  quarters  of  the  globe,  privateers  to 
prey  upon  the  commerce  of  the  United  States.  1  need  not  say 
to  your  honors  that  when  our  Government  has  pronounced  this 
to  be  piracy,  and  to  be  not  within  the  law  of  nations,  under  its 
discretion  to  determine  whether  it  will  recognize  an  inchoate 
nationality,  this  Court  has  not,  any  more  than  lias  a  Court  of  En 
gland  or  France,  the  power  to  say  that  what  its  Government 
does  not  choose  to  recognize,  even  in  the  quality  of  belligerents, 
it  will  recognize.  What  our  Government  has  said  shall  remain 
in  the  quality  of  criminality,  must  so  remain,  notwithstanding 
this  proclamation  of  Jefferson  Davis,  or  any  commission  that 
may  issue  in  pursuance  of  it. 

I  apprehend  that  even  if  we  were  to  bring  ourselves  into  the 
paradoxical  condition  of  passing  judgment  on  this  question  as 
a  disinterested,  yet  sovereign  nation,  your  honors  would  find  in 
the  acts  of  the  Government  a  complete  denunciation  against 
this  proceeding  as  a  crime  of  piracy,  and  a  complete  policy, 
which  the  Court  must  follow,  leaving  any  diplomatic  consider- 


OF   THE    SCHOONER    SAVANNAH.  197 

ations  of  the  results  which  may  follow  its  mistaken,  if  you 
please,  construction  of  its  duty,  to  be  disposed  of  by  the  au 
thorities  that  are  responsible  for  it. 

Mr.  Brady :  I  believe  there  is  no  proof  of  any  such  action 
by  the  legislative  branch  of  this  Government. 

Mr.  JEvarts :  I  apprehend  that  the  whole  course  of  the  legis 
lation  of  this  country  shows  that  we  do  not  recognize  or  tolerate 
this  contest  as  a  thing  that  is  rightfully  to  go  on.  That  is  all 
that  is  necessary. 

I  say,  if  the  Court  please,  that  the  course  of  an  external 
sovereignty,  in  these  intestine  quarrels,  turns  upon  the  point 
whether  it  will  give  its  sanction  to  an  intrusion  upon  the  peace- 
of  the  world  by  an  inchoate  nation,  and  I  am  trying  to  consid 
er  that  question  as  if  our  Government  had  passed  judgment 
upon  it  ab  extra  ;  and  I  say  that  the  action  of  our  Government 
shows  that  we  do  not  intend  to  recognize  it  as  something  that 
should  be  allowed  to  go  on.  These  considerations,  as  to  any 
recognition  by  this  Court  of  rights  derivable  from  quasi,  pre 
tended,  nascent,  public  powers,  would  induce  this  Court  to  fol 
low  the  decision  of  the  Government,  in  case  we  were  judging  of 
the  question  as  a  controversy  between  parts  of  another  nation.. 

1  am  now  brought  to  the  consideration  of  who  are  the  par 
ties  to  this  controversy,  and  what  are  the  relations  of  this  Court 
and  of  the  laws  we  are  administering  to  the  subject  and  the  in 
quiry.  The  Government  of  the  United  States  still  stands.  The 
old  Constitution,  the  whole  system  of  its  statutes,  the  whole 
power  of  its  army  and  of  its  navy,  stand.  It  has  its  Courts  of 
judicature;  it  has  its  commerce  still  on  the  seas;  its  laws  are 
still  operative,  and  still  to  be  administered.  And  when  this 
Court  considers  this  case,  it  finds  it  brought  before  it  as  every 
other  criminal  case  is,  and  limited  to  the  considerations  that 
belong  to  every  criminal  case.  The  Government  of  the  United 
States,  by  the  ordinary  exercise  of  the  process  of  judicature, — 
by  seizure  under  public  authority, — by  arrest  within  this  Dis 
trict,  through  the  criminal  process  of  this  Court, — by  the  indict 
ment  of  a  Grand  Jury, — by  the  prosecution  of  the  District  At 
torney, — has  proposed  to  this  Court  the  naked  and  narrow  in 
quiry  of  whether  these  men  have  committed  a  crime  against 
the  statutes  of  the  United  States.  Now,  I  would  like  to  know 
whether  there  is  anything  in  these  occurrences,  that  have  se 
cured,  if  you  please,  for  the  present,  (and  the  future  may  be 
uncertain,)  in  large  portions  of  our  territory,  a  practical  con 
trol  over  great  portions  of  our  population, — I  would  like  to 
know  if  there  is  anything  in  these  transactions  that  has  dis 
placed  the  constitutional  legislation  of  the  United  States  of 
America  over  crimes  on  the  high  seas,  and  over  its  citizens 


198  TRIAL  OF  THE  OFFICERS  AND  CREW 

committing  crimes  on  the  high  seas,  or  over  subjects  or  citi 
zens,  of  whatever  country,  committing  crimes  on  the  high  seas 
against  our  property?  I  take  it,  not.  Therefore,  if  your  hon 
ors  please,  whatever  may  be  said,  in  one  form  or  another,  of 
the  political  right,  as  respects  these  States,  either  constitution 
ally  or  by  the  right  of  force,  to  be  independent,  or  to  attempt 
to  be  independent  of  the  United  States,  or  to  engage  in  this 
struggle  for  the  settlement  of  some  question  of  dispute  under 
the  Constitution, — whatever  may  be  said  of  that,  your  honors 
cannot  fail  to  discover  that  nothing  which  has  occurred  has  de 
stroyed  the  organism  of  our  Government,  or  altered  for  a 
moment  the  judicial  authority  or  the  force  and  supremacy  of 
the  Constitution  and  the  laws,  within  the  territory  where  the 
Courts  are  open,  over  the  subjects  of  our  Government,  and  the 
subjects  of  whatever  Government,  in  respect  to  whatever  prop 
erty,  upon  the  high  seas. 

I  understand  that  my  learned  friend,  Mr.  Larocque,  sup 
poses  that  the  ordinance  of  repeal  of  South  Carolina,  constitu 
tionally  or  unconstitutionally  supported  by  the  strength  to 
maintain  its  independence,  has  changed  these  four  men  who 
are  indicted  here  and  are  proved  to  be  citizens  of  the  United 
States,  from  their  condition  of  citizens  of  the  United  States ; 
and  he  holds,  and  asks  as  legal  proposition  from  your  honors, 
that,  at  the  time  of  the  commission  of  this  crime,  these  men 
were  not  citizens  of  the  United  States,  by  reason  of  the  con 
stitutional  right  of  South  Carolina  to  carry  itself  out  of  the 
Union,  by  force  of  ordinances,  or  supported  by  military  power 
that  had  maintained  itself  up  to  the  first  of  June  in  the  posses 
sion  of  independent  power.  Your  honors^  will  charge,  or 
refuse  to  charge,  accordingly  as  you  may  find  that  the  old 
Government  has  sovereignty  and  has  attempted  to  exercise  it, 
and  that  there  has  been  no  severance  of  our  territory  to  the 
extent  of  a  permanent  division, — whether  these  men  are  citi 
zens  of  the  United  States,  or  of  a  foreign  country.  If  they  are 
held  to  be  citizens  of  a  foreign  country,  to  wit,  of  South  Carolina, 
or  of  the  Confederate  States,  then'  they  fall  back  under  the 
eighth  section  of  the  Act,  as  having  committed  piracy  under 
that  section. 

But,  to  come  back  to  the  attitude  of  our  Government,  which 
this  Court  must  follow,  towards  these  rebels, — towards  tin-*- 
malcontents, — towards  these  combinations,  which  are  exercising 
the  processes  of  war,  undoubtedly, — what  is  the  attitude  of  our 
Government  ?  Does  it  recognize  their  right — does  it  recognize 
their  independence — does  it  recognize  their  authority,  so  that 
you  find  that  our  Government  lias  adopted  the  policy  of  not 
punishing-  them  under  the  laws  of  the  United  States  ? 

And  this  brings  me  to  the  consideration  of  another  general 


OF   THE     SCHOONER  SAVANNAH.  199 

subject,  which  Mr.  Lord  adverted  to,  and  upon  which  he  cited 
the  authority  of  Vattel — that  it  would  be  monstrous,  and  would 
expose  this  Government  to  the  execration  of  the  world,  if  the 
criminal  laws  against  murder  and  robbery  on  land,  and  the 
civil  laws  against  trespass,  were  to  be  executed  to  the  letter, 
and  to  the  full  extent  of  the  vengeance  of  the  law  against  the 
multitudinous  enemies  that  are  arrayed  against  this  Govern 
ment.  Now,  I  must  decline  to  be  led  out  of  a  Court  of  Justice, 
by  this  argument,  to  considerations  that  appeal  to  the  wisdom, 
or  humanity,  or  policy  of  the  Government.  I  would  like  to 
know  whether  my  learned  friend  would  contend  that,  if  a 
private  soldier,  found  in  arms,  and  part  of  a  military  force, 
against  the  Government  of  this  country,  is  arrested  by  that 
Government,  and  is  indicted,  and  put  upon  his  trial  for  treason, 
which  the  Constitution  of  the  United  States  limits  to  the  overt 
act  of  levying  war  against  the  Government,  and  if,  under  the 
indictment,  he  pleads  in  bar  that  he  was  levying  war  against 
the  United  States  of  America, — that  would  relieve  him?  For 
that  is  the  whole  nature  of  the  proposition  put  forward  in  a 
Court  of  Justice, — that,  because  there  are  armies,  there  is  no 
treason  !  Why,  if  your  honors  please,  how  absurd  to  present 
for  the  recognition  of  a  Government,  in  its  Courts  of  Judicature, 
the  proposition  that  there  is  no  treason,  from  the  number  of 
the  confederates  in  the  treachery  !  Your  honors  see  at  once 
that,  the  idea  of  setting  up  such  a  defence,  on  a  trial  for  treason, 
against  a  private  soldier,  found  in  arms  against  the  Government, 
is  absurd.  And  yet,  your  honors  recognize  what  is  laid  down 
by  the  publicists,  that  when  the  dimensions  of  a  rebellion  have 
been  aggravated  into  the  proportions  of  flagrant  war,  for  a 
Government  to  insist  upon  the  decimation  or  extermination  of 
the  population  by  the  gallows  or  the  axe,  would  be  inconsistent 
with  those  general  principles  of  humanity  and  justice  that 
actuate,  by  necessity,  the  affairs  of  men. 

It  is  not  necessary  for  me  to  discuss  these  questions.  It 
belongs  to  the  Government,  after  it  has  procured  a  conviction, 
either  for  piracy  or  for  treason,  to  decide,  in  its  own  discretion, 
whether  the  penalty  of  the  law  shall  be  inflicted.  Let  us  con 
fine  ourselves  to  our  duties.  Let  us  not  be  asked  here,  as  a 
learned  Bench,  or  as  honest  Jurymen,  to  recognize  a  Govern 
ment  or  a  state  of  belligerency  that  our  nation  does  not  recog 
nize.  And  let  us  not  be  asked  to  repeal  statutes  of  treason 
because  the  number  of  the  traitors  is  so  great  that  we  cannot 
carry  out  the  penalties  of  the  law  against  the  whole.  I  would 
like  to  know  if  in  the  face  of  any  Court  of  Justice, — if  in  the 
face  of  the  public  opinion  of  the  world, — if  in  the  face  of  the 
principles  of  eternal  justice, — it  is  to  be  set  forward  as  a  shield 
over  the  heads  of  the  rebel  leaders  and  traitors,  that  they  have 


200  TRIAL   OF   THE   OFFICERS    AND   CREW 

inflamed  and  misled  so  large  a  body  of  the  common  people, 
that  they,  the  leaders,  cannot  be  punished.  I  would  like  to 
know  if,  when  in  advance,  immediately  upon  the  rebel  proc 
lamation  inviting  privateers,  our  Government,  through  every 
newspaper  in  the  land,  proclaimed  that  whoever  should  volun 
tarily  take  up  this  form  of  piracy  would  be  treated  as  a  pirate, 
and  you  find  the  first  privateer,  with  the  first  commission  taken 
out  under  this  proclamation  of  sovereignty,  and  the  first  band 
that  volunteer — Mr.  Baker  and  his  crew,  collected  from  all  the 
quarters  of  the  globe, — the  first  engaged  in  this  new  and  flagrant 
form  of  outrage,  against  which  they  had  been  warned, — I  would 
like  to  know  if  these  bold  outlaws,  stretching  forward  a  ready 
hand  to  grasp  the  license  of  war  for  plunder,  the  whole  pro 
ceeds  of  which  are  to  fill  their  pockets,  are  to  be  presented 
in  this  Court  as  being  special  objects  of  protection,  under  the 
principles  of  humanity,  and  as  being  shielded  against  public 
ustice  in  enforcing  the  laws  of  piracy. 

Now,  if  your  honors  please,  treating,  as  I  do,  this  question 
as  one  to  be  passed  upon,  not  with  the  coolness  of  a  neutral 
power  looking  upon  these  contending  parties  as  independent 
nations,  but  by  this  Court  as  the  Government's  own  judicial 
organ  for  administering  the  public  justice,  I  would  like  to 
know  what  pretence  there  is  that,  under  the  laws  of  the 
United  States,  the  crime  of  piracy  having  been  proved,  there 
is  anything  in  this  notion  of  a  commission  from  a  nationality 
recognized  by  our  Government,  or  of  a  belligerent  right 
recognized  by  our  Government,  that  this  Court  can  adopt  as  a 
mercer  of  the  private  crime  in  the  public  conflict.  AVe  con 
tend,  therefore,  that  in  the  conflict  now  raging,  the  Constitu 
tion  and  the  laws  of  the  United  States  make  every  person  levy 
ing  war  against  the  Government  a  rebel  and  traitor,  and,  if  the 
war  thus  levied  take  the  form  of  piratical  aggression,  a  pirate, 
within  the  statute. 

Now,  let  me  consider  the  ninth  section  of  the  statute.  I 
will  readily  concede  to  my  learned  friends  whatever  advantage 
they  can  gain  from  the  proposition  that,  when  the  ninth  sec 
tion  was  drawn,  in  the  year  1790,  one  year  after  the  adoption 
of  the  Constitution,  it  was  never  supposed  that  a  pretended 
commission  or  authority  to  prey  upon  the  commerce  of  the 
United  States  and  violate  its  laws  would  come  from  any  part 
of  the  people  or  of  the  territory  of  the  United  States.  And  I 
claim  that  there  is  nothing  in  this  commission  which,  if  there 
had  been  no  statute  recognizing  a  possible  protection  from  a 
commission — there  is  nothing  in  this  commission  from  a  citizen 
of  the  United  States,  Jefferson  Davis,  to  another  citizen  of  the 
United  States,  Thomas  Harrison  Baker,  to  prey  upon  the  com 
merce  of  the  United  States,  that  can  be  regarded  for  a  moment 


OF   THE   SCHOONER   SAVANNAH.  201 

as  a  license  which  makes  him  a  privateer,  instead  of  a  pirate. 
My  learned  friends  have  even  sought  to  lind  occasion  for  a 
variance  between  the  proof  and  the  indictment  because  we 
have  alleged,  under  the  ninth  section,  that  the  pretended 
authority  comes  from  %t  one  Jefferson  Davis,"  and  have  proved 
a  commission  which  says,  "  I,  Jefferson  Davis,  in  the  name  of 
the  Confederate  States,"  have  given  such  authority.  Why,  if 
your  honors  please,  this  indictment  was  drawn  by  an  officer  of 
the  United  States  Government,  to  be  tried  in  a  Court  of  the 
United  States ;  and,  having  a  fear  of  the  law  and  a  sense  of  his 
duty  to  his  country,  he  describes  things  '  as  they  are.  And  I 
would  like  to  have  my  learned  friends  point  out  to  me  any 
place,  any  office,  any  title,  any  description,  any  addition,  any 
qualification,  that,  under  the  laws  of  the  United  States  of 
America  and  its  Constitution,  describes  Jefferson  Davis,  except 
"  one  Jefferson  Davis."  He  has  precisely  that  port  and  dignity 
before  the  law  and  the  Constitution  that  every  other  individual 
in  the  United  States  has,  not  filling  an  office  and  post  of 
authority  under  our  Government  and  under  our  laws.  He 
does  fill  the  place  of  citizen  of  the  United  States,  and  no 
measures  of  separate  State  action,  or  of  Confederate  authority, 
have  relieved  him  from  that  full  and  complete  Description  of 
him,  under  the  Constitution  of  the  United  States,  as  the  meas 
ure  of  his  allegiance  and  of  the  penalties  for  its  forfeiture. 
How  could  we  have  found  a  legal  phrase  or  term,  if  we  regard 
the  Government  of  the  United  States  and  its  Constitution,  by 
which  we  could  designate  any  such  thing  as  "  Confederate 
States,"  or  a  foreign  state,  within  the  accredited  territory  of 
the  United  States  ?  The  terms  and  intent  of  this  ninth  section 
were  framed  so  as  to  cover  every  imaginable  authority,  in  the 
nature  of  a  commission  from  a  State,  from  a  nation,  from  a 
power,  or  from  any  person,  under  the  law  of  nations,  for  the 
conversion  of  private  marauders  into  public  enemies  with  the 
rights  of  war  ;  and,  although  it  never  entered  into  the  imagina 
tion  of  the  framers  of  this  statute  that  it  would  ever  have  to  be 
applied  to  exclude  protection  under  a  commission  from  a  citizen 
of  the  United  States,  its  terms  are  absolutely  fitting.  I  contend 
that  the  statute  is  complete,  and  that  this  commission  is  not  a 
pretence  of  authority,  even  under  the  law  of  nations  estab 
lishing  and  recognizing  privateers  for  struggling  communities. 
It  is  nothing  but  an  authority  from  one  citizen  of  the  United 
States  to  another  citizen  of  the  United  States  to  prey  upon  the 
property  of  the  United  States. 

There  are,  if  the  Court  please,  some  political  considerations 
which  were,  it  appears  to  me,  more  appropriately  urged  by 
my  learned  friend,  Mr.  Larocque,  in  his  first  address  to  the 
Jury,  than  in  his  argument  to  the  Court.  The  point  made  by 


202  TRIAL   OF   THE    OFFICERS    AND    CREW 

liim  was  this — that,  under  the  Constitution  of  the  United 
States,  every  citizen  of  every  State  held  what  was  called  the 
position  of  divided  allegiance,  having  two  sovereign  masters 
over  him;  that  they  were  equal  and  co-ordinate  sovereigns; 
and  that  it  was  his  duty  to  obey  both  of  them.  Now,  with 
the  necessary  limitation  that  each  one  is  sovereign  over  him 
in  some  respects,  and  has  not  the  least  power  over  him  in 
others,  and  that  the  other  is  sovereign  over  him  in  other 
respects,  and  does  not  include  the  first  topic  or  line  of  duty, 
there  is  a  speculative  support  for  this  general  notion.  And, 
whenever  it  is  not  'urged  into  any  absurd  consequences,  it 
serves,  in  the  language  of  the  Courts  and  of  public  men,  to 
describe  the  complex  Government  under  which  we  live.  But, 
if  rny  learned  friend  means  to  assert  that  there  are,  under  the 
Government  of  the  United  States,  according  to  its  form  and 
method  of  organic  operation,  two  equal  sovereigns  over  every 
citizen  on  the  same  subjects,  why  then  he  has  flown  in  the  face 
of  a  fundan^ental  proposition,  coming  from  higher  authority 
than  the  Convention  of  1790 — that  no  man  can  serve  two  mas 
ters.  It  is  not  in  the  nature  of  things  that  there  can  be  two 
sovereigns  having  equal  rights  and  authority  over  one  subject ; 
and  my  learlted  friend  illustrates  the  absurdity  of  the  proposi 
tion  when  he  comes  to  consioler  what  would  be  the  result  if  the 
two  sovereigns  should  disagree.  He  says  it  is  the  duty  of  the 
subject  to  adhere  to  one  side  or  the  other;  that,  it  being  his 
complete  duty  to  adhere  to  one  side,  the  other  side  cannot 
complain  of  it  as  a  breach  of  duty  that  he  does  not  adhere  to 
him,  but  to  the  other ;  and  that,  therefore,  the  general  rule,  that 
when  you  have  a  sovereign  and  are  unfaithful  to  him  you  may 
be  hanged,  cannot  apply  to  the  case,  because  you  would,  in 
either  case,  be  hanged.  And  his  wise,  and  suitable,  and  cer 
tainly  humane  solution  of  this  difficulty  is,  that  when  one  of 
the  sovereigns  indicts  you  for  treason,  it  is  a  good  bar  to  say 
you  elected  in  good  faith  to  serve  the  other  sovereign.  Thus, 
so  far  from  there  being  two  sovereigns,  the  nature  of  the  term 
sovereign  including  the  right  to  hang  you  for  unfaithfulness, 
there  is  not  one  that  has  the  right  to  hang  you,  and  you  are 
master  of  both  ;  for,  whatever  you  do  in  good  faith  is  a  supreme 
answer  to  both. 

Now,  if  the  Court  please,  this  is  the  point  of  the  whole 
thing — that,  under  this  peculiar  Constitution  of  ours,  and  under 
this  division  of  the  subjects  of  Government,  each  sovereign  is 
judge  of  when  the  other  has  passed  the  limits  of  his  authority, 
and  that  the  States  possess  the  right  to  compel  the  obedience 
of  their  citizens,  and  the  United  States  possess  the  right  to 
compel  the  obedience  of  their  citizens.  It  is  sufficient  for  us 
to  say  that  we  represent,  as  Federal  citizens,  the  Government 


OF   THE   SCHOONER   SAVANNAH.  203 

of  the  United  States  in  its  interpretation  of  its  own  position 
towards  those  its  citizens,  or  those  persons  not  its  citizens, 
who  are  alleged  to  have  perpetrated  crimes  against  its  com 
merce  ;  and,  whether  there  be,  or  not,  speculations  of  political 
and  theoretical  and  ethical  and  conscientious  right,  in  good 
faith,  to  put  yourself  at  variance  with  the  Government  of  the 
United  States  because  other  people  do  so,  or  because  the  State 
authority  does  so,  it  follows  that  the  United  States,  its  authori 
ties,  its  Courts,  and  its  population,  have  the  right  to  think,  and 
feel,  and  act,  as  if  its  Government  were  in  the  right  and  you  were 
in  the  wrong ;  and  you,  being  brought  within  the  criminal  justice 
of  their  law,  can  find  no  support  and  no  protection  upon  the  good 
faith  or  upon  the  speculative  political  theories  upon  which  you 
have  rested  for  your  protection  and  for  your  authority. 

It  is  said,  that  outside  of  this  question  of  the  political  and 
legal  qualifications  of  this  act  which  we  say  is  criminal,  the 
circumstances,  actual  and  moral,  which  surround  these  actors, 
and  are  shown  by  their  actions,  have  deprived  their  acts  of  the 
criminal  quality  which  the  statute  affixes  to  them ;  and  that  if, 
in  good  faith,  they  thought  there  was  a  commission,  and  in 
good  faith  thought  there  was  a  rightful  Government,  that  good 
faith,  which  has  despoiled  the  American  merchant  of  his  prop 
erty,  is  a  plea  in  bar  to  the  criminal  jurisdiction  of  the  United 
States  of  America,  whose  laws  they  have  violated,  although  all 
this  pretence,  all  this  show,  all  this  form  of  political  and  legal 
support  qualifying  their  acts,  comes  from  men  whom  the  Con 
stitution  pronounces  to  be  in  the  category  of  rebels  and  traitors, 
every  one  of  them  amenable  to  the  final  jurisdiction  of  our 
laws.  This  is  but  another  form  of  saying  that  criminals  join 
ing  hand  in  hand  shall  go  unpunished.  Make  the  number  of 
them  what  you  will,  if  in  the  eye  of  the  law  they  assume  au 
thority  which  is  on  its  face  criminal  and  illegal,  and  even 
though  it  is  a  part  of  a  general  scheme  and  organization  for 
violent  military  resistance  to  the  authority  of  the  country,  no 
Court  can  dispense  from  the  punishment,  but  must  inflict  it 
through  the  general  and  ordinary  criminal  authority  in  respect 
to  the  crime  in  question,  leaving  the  question  of  dispensation 
to  the  clemency,  the  humanity,  and  the  policy  of  the  Govern 
ment. 

I  believe  that  all  the  cases  have  been  cited,  either  on  the 
one  side  or  the  other,  from  the  Reports  of  the  Supreme  Court  of 
the  United  States,  that  have  had  to  do  with  the  question  as  to 
the  political  character  of  the  revolted  South  American  Sta'tes. 
Those  which  were  cited  by  my  learned  friend,  Mr.  Larocque, 
The  Josef  a  Segunda  (5  Wheaton,  338),  The  Bello  Corunnes  (6 
Wheaton,  152),  and  The  Santissima  Trinidad  (7  Wheaton, 
283),  are  all  authorities,  as  we  suppose,  for  the  view  which  the 


204:  TRIAL   OF   THE   OFFICERS    AND   CREW 

Courts  adopt,  even  when  they  are  Courts  of  a  neutral  nation — 
that  they  follow  the  decisions  of  their  Government  as  to  the 
public  quality  and  character  of  belligerents. 

Adjourned  to  Monday,  28  Oct.,  at  11  o'clock,  A.  M. 


FIFTH    DAY. 

October  28,  1861. 
ARGUMENT  OF  MR.  DUKES  FOR  THE  DEFENCE. 

Mr.  Evarts  said :  Perhaps  it  is  unnecessary  that  I  should 
say  to  the  Court  and  learned  counsel,  that  I  shall  refer  to  the 
Statute  of  treason,  as  well  as  to  the  Constitutional  provision  as 
to  treason.  The  Statute  of  treason  is  found  in  the  first  section 
of  the  Crimes  Act  of  1790. 

Mr.  Dukes  said : 

May  it  please  your  honors  and  gentlemen  of  the  Jury. 

It  has  been  said  by  one  of  the  most  eminent  statesmen  that 
ever  lived,  that  "  civil  wars  strike  deepest  into  the  manners  of 
the  people, — they  vitiate  their  politics  ;  they  corrupt  their  mor 
als  ;  they  pervert  the  natural  taste  and  relish  of  equity  and  jus 
tice." 

If  this  be  so,  one  would  think  that  this  was  a  singularly  un 
fortunate  time  for  the  Government  to  bring  on  the  trial  of  these 
prisoners  at  your  bar,  who  are  entitled  to  that  right  which  the 
Constitution  offers  to  the  meanest  citizen — that  of  a  fair  and 
impartial  trial. 

Is  it  to  obtain  that  fair  and  impartial  trial  that  the  case  is 
brought  on  now,  when  the  flame  of  civil  war  lights  the  land, 
and  when,  in  every  stage  and  condition  of  society,  the  bitterest 
sentiments  of  hostility  prevail  ? 

Is  it  in  order  to  afford  the  prisoners  a  fair  and  impartial  trial 
that  the  case  is  brought  on  now,  when  tender  infancy  and  gen 
tle  woman  unite  with  stern  and  selfish  man  in  uttering  the 
deepest  imprecations  on  their  enemies? 

Is  it  in  order  to  obtain  a  fair  and  impartial  trial  that  the 
case  is  brought  on  now,  when,  on  God's  holy  day, 'in  his  holy 
temple,  his  chosen  ministers  officiating  at  his  holy  altar,  utter 
ly  unmindful  of  the  injunction  of  their  meek  and  lowly  Master, 
"to  forgive  their  enemies,  and  to  pray  for  those  who  despite- 
fully  use  them" — offer  up  to  Heaven  prayers  for  its  severest 
vengeance  upon  the  heads  of  their  enemies  ? 


OF  THE   SCHOONER   SAVANNAH.  205 

If  so,  gentlemen,  I  beg  at  least,  (as  one  of  the  counsel,)  to 
oiler  my  dissent. 

It  does,  indeed,  seem  to  me  that  this  is  a  singularly  unfortu 
nate  time  to  bring  on  this  trial.  But  yet,  gentlemen,  I  feel 
buoyed  up  with  hope,  because  I  know  the  unbending  integrity 
of  the  Judges  that  officiate,  and  I  know  that  the  Jury,  which  sits 
in  judgment  over  the  lives  of  these  men,  is  chosen  from  the  cit 
izens  of  New  York  —  a  city  in  which,  if  any  city  in  the  world 
possesses  large,  liberal,  and  enlightened  views,  we  may  hope  to 
find  them.  But,  still,  the  officers  of  the  Government  must  ex 
cuse  me  for  saying  that  I  think  it  unfortunate,  and  somewhat 
illiberal  in  them,  considering  the  character  of  the  charge  made 
against  these  men,  to  try  them  now.  It  does  seem  to  me  that  it 
is,  at  best,  but  trying  treason  with  an  odious  name. 

Gentlemen,  this  is  no  new  thing.  Years  ago  this  very  ques 
tion,  as  to  the  propriety  of  trying  men  situated  as  these  men 
are,  was  brought  before  the  mind  of  that  liberal  and  enlight 
ened  statesman,  Edmund  Burke  —  the  long-tried  and  faithful 
friend  of  America  ;  and  I  trust  that  I  may  be  pardoned  for  re 
ferring  to  his  words  on  this  occasion,  and  for  reading  to  you  a 
passage  from  his  celebrated  letter  to  the  Sheriffs  of  Bristol,  in 
1777,  which,  perhaps,  will  more  fully  illustrate  my  views  than 
anything  I  can  say.  Speaking  about  American  privateersmen, 
then  in  the  same  position  as  these  men  now  are,  he  says  : 

"  The  persons  who  make  a  naval  warfare  upon  us,  in  consequence  of  the 
present  troubles,  may  be  rebels  ;  but  to  treat  and  call  them  pirates  is  con 
founding,  not  only  the  natural  distinction  of  things,  but  the  order  of  crimes  ; 
which,  whether  by  putting  them  from  a  higher  part  of  the  scale  to  the  lower, 
or  from  the  lower  to  the  higher,  is  never  done  without  dangerously  disorder 
ing  the  whole  frame  of  jurisprudence. 

"  Though  piracy  may  be,  in  the  eye  of  the  law,  a  less  offence  than  treason, 
yet,  as  both  are,  in  effect,  punished  with  the  same  death,  the  same  forfeiture, 
and  the  same  corruption  of  the  blood,  I  never  would  take  from  any  fellow- 
creature  whatever  any  sort  of  advantage  which  he  may  derive  to  his  safety 
from  the  pity  of  mankind,  or  to  his  reputation  from  their  general  feelings  by 
degrading  his  offence,  when  I  cannot  soften  his  punishment. 

11  The  general  sense  of  mankind  tells  me,  that  those  offences  which  may 
possibly  arise  from  mistaken  virtue  are  not  in  the  class  of  infamous  actions. 

"  Lord  Coke,  the  oracle  of  the  English  law,  conforms  to  that  general  sense, 
where  he  says,  '  That  those  things  which  are  of  the  highest  criminality  may 
be  of  the  least  disgrace.'  *  *  *  *  *  * 

"  If  Lord  Balmerine,  in  the  last  rebellion,  had  driven  off  the  cattle  of  twen 
ty  clans,  I  should  have  thought  it  would  have  been  a  scandalous  and  low  jug 
le,  utterly  unworthy  of  the  manliness  of  an  English  judicature,  to  have  tried 
im  for  felony  as  a  stealer  of  cows. 

"  Besides,  I  must  honestly  tell  you  that  I  could  not  vote,  or  countenance 
in  any  way,  a  statute  which  stigmatizes  with  the  crime  of  piracy  these  men, 
whom  an  Act  of  Parliament  had  previously  put  out  of  the  protection  of  the 
law. 

"  When  the  legislature  of  this  Kingdom  had  ordered  all  their  ships  and 
goods,  for  the  mere  new-created  offence  of  exercising  trade,  to  be  divided  as 


g 
h 


206  TRIAL    OF   THE    OFFICERS   AND    CREW 

a  spoil  among  the  seamen  of  the  navy — to  consider  the  necessary  reprisal  of 
an  unhappy,  proscribed,  interdicted  people  as  the  crime  of  piracy,  would  have 
appeared,  in  any  other  legislature  than  ours,  a  strain  of  the  most  insulting  and 
unnatural  cruelty  and  injustice.  I  assure  you,  I  never  remember  to  have 
heard  any  thing  like  it,  in  any  time  or  country." 

Gentlemen,  I  read  this  extract  because  it  is  the  testimony 
of  an  eminently  wise  man,  and  an  eminently  just  one.  Such 
were  his  views  at  that  day,  and  I  am  inclined  to  believe  that 
those  words  spoken  by  him  then  have  a  better  application  to 
the  state  of  things  at  present  than  any  remarks  I  can  make,  or 
that  can  be  made  by  any  one  of  us  who  are  in  the  midst  of 
this  whirl  of  excitement. 

But,  gentlemen,  the  Government  has  chosen  to  make  the 
issue.  It  was  at  liberty  to  do  so ;  and  that  issue  is  piracy. 

Piracy,  gentlemen  of  the  Jury,  you  have  heard  defined  by 
the  eminent  counsel  who  preceded  me.  The  parties  here  occu 
py,  as  it  were,  a  two-fold  capacity.  The  eighth  section  of  the 
Act  of  1790  applies  to  piracy  under  the  common  law ;  the  ninth 
section  of  that  Act  creates  what  we  have  called  statutory  piracy. 
The  eighth  section  of  the  Act  only  alludes  to  piracy  as  it  is 
acknowledged  under  the  law  of  nations,  and  as  known  to  the 
common  law.  The  ninth  section,  however,  differs  from  the 
eighth,  because  it  applies  peculiarly  to  citizens  of  the  United 
States,  and  is  supposed  to  be  more  enlarged  in  its  character 
than  the  eighth  section.  Now,  with  reference  to  a  portion  of 
the  prisoners  here, — to  those  who  are  not  citizens, — eight  of 
them  come  entirely  under  the  eighth  section  ;  and  we  shall 
contend  that,  under  that  section,  they  cannot  be  convicted.  As 
regards  the  other  four,  it  will  be  contended,  that  not  only  are 
they  embraced  by  the  first,  but  likewise  by  the  second  of  these 
sections — that  of  statutory  piracy,  which  applies  peculiarly  to 
them. 

Well  now,  gentlemen,  in  regard  to  the  eighth  section,  the 
learned  counsel  who  very  ably  addressed  the  Court  on  last 
Saturday,  stated  that  intent  had  little  or  nothing  to  do  with 
the  offence  ;  that  he  did  not  choose  to  be  held  to  the  animus 
fruendi,  but  that  the  charge  was  the  animus  furandi,  and  that 
when  a  person  committed  robbery  it  was  but  of  very  little 
consequence  to  what  purpose  he  applied  the  proceeds  of  the 
robbery,  or  for  whom  he  committed  it.  Now,  with  all  due 
deference  to  the  learned  counsel,  I  think  this  is  putting  the  case 
rather  unfairly,  because  he  is  quietly  assuming  the  very  point 
we  are  discussing  ;  for  it  is  the  fact  of  the  animus  furandi — 
the  fact  whether  or  not  this  is  robbery — that  we  are  discus 
sing. 

We  have  distinctly  said,  and  shown  by  the  books,  that  that 
which  he  says  is  not  the  characteristic  of  the  crime,  is  really 


OF   THE    SCHOONER    SAVANNAH.  207 

its  characteristic,  and  that   intent   in  this,  as  in  every  other 
offence,  peculiarly  constitutes  .the  crime. 

It  is  just  because  the  taking  is  not  for  the  party  himself— 
is  not  an  appropriation  for  his  own  purpose,  and  for  his  own 
ends,  and  for  his  own  object,  that  there  is  a  difference  between 
piracy  and  privateering.  And  why  is  this  so  ?  Because  the 
party  who  goes  forth  on  a  privateering  expedition,  goes  forth 
under  the  sanction  of  a  nation.  It  may  be  a  nation  only  de 
facto,  but  still  it  is  a  nation.  He  goes  by  the  authority  of  that 
nation,  armed  with  a  commission  under  its  sanction,  after 
having  given  the  most  ample  security  to  be  responsible  to  the 
nation  itself  for  any  act  of  misconduct  on  his  part ;  that  nation 
holding  itself  out  to  the  civilized  world  as  responsible  for  every 
excess  on  the  part  of  the  citizen  to  whom  it  grants  letters  of 
marque.  Well,  gentlemen,  the  taking  of  property  on  the  part 
of  the  privateer  is  not  for  himself.  The  taking  is  in  the 
name  of  the  State.  The  title  which  the  privateer  has  in  the 
captured  property  is  no  title  at  all,  nor  does  he  pretend  to 
claim  it.  The  title  is  in  the  State,  and  up  to  the  very  moment 
of  condemnation,  although  the  property  may  have  been  ac 
quired  by  his  blood,  and  by  his  treasure,  the  State  has  the  right 
to  release  it.  So  important  is  this  fact  of  intention,  as  entering 
into  the  transaction,  that  it  has  been  held  that  no  excess  on  the 
part  of  a  person  carrying  letters  of  marque  from  a  regular 
Government  could  be  punished  as  piracy — the  Government 
being  liable,  and  he  himself  being  referred  to  his  own  Govern 
ment  for  punishment. 

It  has  been  even  held  in  England,  that  where  the  act  of 
taking  a  commission  from  a  foreign  prince  was  so  unlawful  in 
its  character  as  to  amount  under  the  law  to  a  felony,  yet  still 
the  party  having  letters  of  marque,  should  not  be  charged 
with  piracy. 

Now,  gentlemen,  there  was  an  attempt  made  by  the  learned 
counsel  to  cast  odium  upon  privateering  and  upon  this  transac 
tion,  by  speaking  of  these  men  as  going  out  for  their  own  plun 
der.  Well,  I  have  nothing  to  say  about  that ;  but  there  is 
one  thing  to  be  remarked  :  that  in  times  of  hostility  the  plun 
der  does  not  belong  to  one  side,  nor  does  it  belong  to  the  pri- 
vateersman  alone,  but  the  regularly  armed  vessels  of  every 
nation  in  the  world,  as  well  as  privateersmen,  are  enriched  by 
the  capture  of  prizes  at  sea ;  and  1  suspect  that  the  members 
of  the  bar  now  present  can  tell  you  how  extensively  our  own 
navy  has  been  enriched  within  the  last  few  weeks  by  the  con 
demnation  of  prizes.  If  the  spoils  derived  from  enemies'  prop 
erty  be  plunder,  and  if  it  be  disgraceful  to  take  it,  then  the 
highest  names  in  England  have  been  associated  with  such 
plunder,  for  you  have  but  to  look  into  the  English  books  to  find 


203  TRIAL    OF   THE    OFFICERS    AND   CREW 

the  name  of  the  great  and  distinguished  Arthur,  Duke  of  Wel 
lington,  as  connected  with  such  cases. 

But,  gentlemen,  there  is  another  thing  which  would  prevent 
the  parties  from  being  convicted  of  piracy,  that  is,  the  state  of 
enmity  existing  between  the  two  nations.  It  is  a  general  rule 
that  enemies  can  never  commit  piracy  against  each  other,  their 
depredations  being  deemed  mere  acts  of  hostility.  This  is  as 
far  back  as  the  days  of  Lord  Coke ;  and  the  rule  has  been 
carried  so  far  as  to  protect  the  citizen  of  one  of  the  belligerents, 
who,  without  any  letter  of  marque  at  all,  goes  on  the  ocean  and 
seizes  the  property  of  the  enemy.  It  is  true,  it  has  been  said 
that  in  such  cases  citizens  act  at  their  peril,  and  are  liable  to 
be  punished  by  their  own  sovereign ;  but  the  enemy  is  not 
warranted  in  considering  them  as  criminals. 

That  the  people  of  the  Confederate  States,  under  whose 
commission  these  men  have  acted,  stand  in  the  light  of  ene 
mies,  the  learned  decisions  of  Judges  Cadwalader  and  Betts; 
the  blockade  of  the  Southern  ports,  which  is  a  hostile  measure  ; 
the  confiscation  of  the  property  of  their  citizens — not  only  of 
the  property  of  the  men  who  have  arms  in  their  hands,  but  of 
the  citizens  at  large ;  the  captures  at  sea;  the  vessels  condemned 
here;  the  virtual  dissolution  of  partnerships;  the  admission  of 
the  plea  of  alien  enemy;  the  President's  proclamation  of 
non-intercourse  ;  the  arrest  of  citizens  of  those  States  returning 
from  Europe ;  and  the  opinion  of  my  learned  friend,  the  Dis 
trict  Attorney  himself,  showing  that  it  is  treason  for  the  banks 
here  to  pay  over  the  bank  balances  to  Southern  customers, — all 
these  things  go  to  establish,  thoroughly  and  sufficiently,  the 
condition  of  enmity  or  hostility,  which  forms  a  protection  to 
these  parties.  They  fix  the  status  of  war ;  they  decide  that  the 
two  powers  are  enemies,  and  that,  too,  without  any  declaration 
of  war,  for  no  declaration  of  war  is  needed.  It  seems  to  me  that 
it  is  all  useless  to  attempt  to  evade  the  admission  that  there  is 
war.  We  cannot  by  legal  enactments — we  cannot  by  judicial 
decisions — we  cannot  by  Presidential  Proclamations — establish 
the  condition  of  war  and  all  the  consequences  of  war,  and  yet 
shrink  from  its  open  avowal.  And  yet  that  is  precisely  what 
is  attempted  here.  It  may  do  with  those  that  are  strong  to 
oppress  their  own  subjects,  but  it  will  not  do  when  you  come 
to  deal  with  foreign  nations.  When  you  come  to  deal  with 
these  eight  men  who  are  here,  the  subjects  of  foreign  powers, 
those  powers  have  a  right  to  put  in  a  word.  Gentlemen,  it  is 
impossible  for  this  Government  to  do  less  than  acknowledge 
that,  in  fact,  there  is  a  state  of  hostility ;  and  you  may  as  well 
call  it  by  its  proper  name — we  are  in  the  midst  of  war. 

It  will  not  do  for  the  Government,  like  the  ostrich,  to  put 
its  head  under  its  wing,  and  fancy  that  because  it  sees  nobody, 


OF   THE    SCHOONER    SAVANNAH.  209 

nobody  sees  it.  The  Government  has  enacted  all  the  conse 
quences  of  war  without  making  an  open  or  decided  declaration 
of  it.  Under  such  circumstances,  however,  the  status  [of  en 
mity  is  sufficiently  fixed  to  protect  the  prisoners. 

But  there  is  another  test  of  piracy,  gentlemen,  and  it  is 
this — Is  the  privateer  a  universal  enemy  ?  Is  he  a  universal 
plunderer?  Is  his  hand  against  every  man  ?  Has  he  not  a 
nation  ? 

Now  a  pirate  has  no  nation.  He  is  an  outlaw,  and  is  jus 
ticiable  everywhere.  His  is  the  law  of  might — 

" For  why?    Because  the  good  old  rule 
Sufficeth  him :  the  simple  plan 
That  they  should  take  who  have  the  power, 
And  they  should  keep  who  can." 

But  it  is  not  necessary  that  the  nation  under  whose  com 
mission  he  acts,  shall  be  one  which  is  already  established  and 
acknowledged  among  the  family  of  nations.  It  may  be  a 
colony  struggling  for  independence,  and  not  yet  recognized  by 
the  nations  of  the  earth.  Our  own  Courts  years  ago  decided 
this  case  with  a  liberality  which  has  eminently  distinguished 
them,  and  established  the  principle  in  respect  to  the  South 
American  colonies — colonies  at  that  time  not  acknowledged 
by  our  Government  as  independent  nations. 

So,  gentlemen,  it  was  with  regard  to  the  powers  of  Europe 
during  the  days  of  the  American  Revolution.  Every  power 
in  the  world  respected  the  letters  of  marque  issued  by  Con 
gress  ;  and  if  there  is  an  instance  of  a  single  case  in  which, 
in  any  land  in  the  civilized  world,  there  was  a  criminal  trial  of 
an  American  privateersman,  I  have  not  been  able  to  find  it. 
Their  letters  of  marque  were  recognized  because  they  were 
the  letters  of  a  de facto  Government. 

Now,  gentlemen,  what  are  the  tests  sufficient  to  form  such 
a  nationality  as  will  cover  these  commissions  ?  Are  the  Con 
federate  States,  in  this  instance,  competent  to  maintain  the 
relations  of  war  and  of  peace  ?  Gentlemen,  if  the  South  Amer 
ican  provinces  were,  I  think  it  can  hardly  be  disputed  that  the 
people  of  ten  great  States  like  these  certainly  are.  They  are 
very  far  beyond  them  in  civilization,  in  information,  in  wealth, 
and  in  all  the  means  by  which  nations  sustain  their  independ 
ence. 

So  important,  however,  is  the  fact  of  a  commission,  that 
even  a  commission  from  the  Barbary  powers — states  which 
subsisted  entirely,  I  may  say,  by  plunder  and  piracy — was  re 
garded  as  sufficient,  in  the  Courts  of  England,  to  protect  an 
Algerine  who  was  taken  with  letters  of  marque.  And  that 


210  TRIAL   OF   THE   OFFICERS    AND   CREW 

opinion  comes  with  the  authority  of  one  of  the  greatest  mas 
ters  of  the  science  of  jurisprudence — Sir  William  Scott — a 
name  that  can  never  be  mentioned  without  feelings  of  rever 
ence  by  any  man  who  respects  the  sentiments  of  justice  and 
their  application  to  the  principles  of  international  law.  In  the 
case  I  allude  to,  tbe  Barbary  subject  was  taken  in  an  attempt 
to  seize  an  English  vessel.  The  crew  was  composed  of  foreign 
ers,  men  of  different  nations,  most  of  them  belonging  to  Spain 
and  France.  It  was  held  that  as  to  all  the  rest  of  the  parties 
they  should  be  treated  as  outlaws,  but  the  Algerine  was  allowed 
the  plea  of  respondeat  superior.  In  other  words,  he  had  but 
to  point  to  his  country,  and  say  she  was  responsible  ;  that  she 
gave  him  authority,  and  assumed  the  responsibility  ;  and  upon 
that  plea  he  was  allowed  to  go.  1  mention  this  to  show  how 
far  the  doctrine  has  been  carried. 

But,  gentlemen,  if  the  commission  from  a  Government  dt 
facto  generally  is  a  plea  in  bar  (and  that  it  is,  I  have  no  doubt 
the  Court  will  charge  you),  it  certainly  holds  good  in  a  case  of 
this  kind,  where  the  authority  is  much  less  questionable. 
Now,  are  the  United  States  bound  to  recognize  the  Confederate 
States  as  belligerents  ?  Not  as  an  independent  nation, — that 
is  an  entirely  different  question.  We  say,  gentlemen,  not  only 
that  the  United  States  are  bound  to  recognize  the  Confederate 
States  as  belligerents,  but  we  think  we  have  shown  that  they 
have  done  so.  The  capitulation  between  Commodore  String- 
ham,  General  Butler,  and  Commodore  Barron,  recognized  the 
existence  of  a  state  of  war,  and  recognized  the  prisoners  as 
prisoners  of  war  ;  and  not  one  word  has  been  said,  and  not  one 
act  done,  by  the  Government,  to  disavow  their  authority  in  so 
doing.  It  is  the  principle  of  civilized  nations — and  we  belong 
to  the  family  of  civilized  nations — to  recognize  parties,  even  in 
the  midst  of  civil  war,  as  belligerents  ;  and  this  country  is  too 
just,  too  powerful,  and  too  elevated  in  sentiment,  to  shrink  from 
that  which  civilization,  decency  and  honor  compel  her  to  stand 
to.  She  must  recognize  even  those  who  are  her  children — 
struggling  against  her  authority  though  they  be — as  fair  and 
honest  antagonists.  From  the  time  of  our  own  struggle,  in  the 
days  of  the  Revolution,  we  professed  the  principles  of  interna 
tional  law.  They  are  now  a  part  of  the  law  of  the  land.  There 
is  amoral  obligation  upon  us  to  occupy  our  position  in  the  great 
family  of  nations;  to  hold  it,  as  we  have  always  done,  with  honor 
and  with  distinguished  consideration.  Sorry,  indeed,  would  I 
be  to  think  that  there  should  be,  on  this  occasion,  any  eminent 
departure  from  it,  as  there  certainly  would  be  if  these  men 
were  held  in  any  other  light  than  as  mere  privateersmen,  and 
not  pirates. 

But  if  these  principles  are  true,  as  applying  between  the 


OF   THE    SCHOONER    SAVANNAH.  211 

people  of  this  country  and  the  people  of  England  during  the 
days  of  the  Revolution, — if  the  mother  country  then  considered 
us  as  belligerents  where  there  could  be  no  subtle  political  ques 
tion  such  as  may  be  raised  here,  and  has  already  been  raised 
— the  doctrine  of  the  two  sovereignties, — there  is  then,  at  least, 
a  reason  which  applies  in  this  case,  and  never  could  have  ap 
plied  in  that  case ;  for  the  allegiance  of  the  colonies  to  the 
mother  country  was  firm,  fixed,  and  undivided  :  it  never  was, 
and  never  could  be,  questioned. 

I  say,  then,  that  these  parties  are  not  pirates ;  and  1  further 
say  that  the  municipal  laws  of  a  State,  or  of  a  number  of  States, 
cannot  constitute  that  offence  to  be  piracy  which  is  not  so 
characterized  by  international  law;  and  for  this  principle  I  re 
fer  to  1st  Phillimore,  381  (International  Law). 

I  come  now  to  the  9th  section,  and  I  will  read  that  sec 
tion: 

"  And  be  it  further  enacted,  that  if  any  citizen  should  commit  any  piracy 
or  robbery  aforesaid,  or  any  act  of  hostility  against  the  United  States  or  any 
citizen  thereof,  on  the  high  seas,  under  color  of  any  commission  of  any  for 
eign  Prince  or  State,  or  on  pretence  of  authority  from  any  person,  such  offender 
shall,  notwithstanding  the  pretence  of  any  such  authority,  be  deemed,  ad 
judged,  and  taken  to  be  a  pirate,  felon,  and  robber,  and  on  being  convicted 
thereof  shall  suffer  death." 

This  section  applies  particularly  to  the  citizens  of  the 
United  States.  Now,  I  contend  that  this  section  does  not 
change  the  character  of  the  offence.  It  differs  only  by  stating 
that  the  commission  shall  not  form  a  pretext.  The  words  "  pi 
racy  and  robbery"  explain  the  words  u  acts  of  hostility,"  which 
follow  immediately  afterwards.  Where  particular  words  are 
followed  by  general  words,  the  latter  are  held  as  applying  to 
persons  and  things  of  the  same  kind  as  those  which  precede. 
The  coupling  of  words  together  shows  that  they  are  to  be  un 
derstood  in  the  same  sense.  Take  these  two  principles  with 
the  other  principle,  that  penal  statutes  are  to  receive  a  strict 
interpretation.  The  general  words  of  a  penal  statute  must  be 
restrained  for  the  benefit  of  him  against  whom  the  penalty  is 
inflicted. 

To  the  same  effect  is  the  case  of  The  United  States  vs. 
Bevins  (5  Wheatori) : 

"  Penal  statutes,  however,  are  taken  strictly  and  literally  only  in  point  of 
defining  and  setting  down  the  crime  and  the  punishment ;  and  not  literally  in 
words  that  are  but  circumstances  and  conveyance  in  the  putting  of  the  case. 

"  Thus,  though  by  the  statute  1  Ed.  6,  0.  12,  it  was  enacted  that  those 
who  were  convicted  of  stealing  horses  should  not  have  the  benefit  of  clergy, 
the  Judges  conceived  that  this  did  not  extend  to  him  that  should  steal  but 
one  horse,  and  therefore  procured  a  new  Act  for  that  purpose  in  the  follow 
ing  year. 

"  But  upon  the  Statute  of  Gloucester,  that  gives  the  action  of  waste  against 


212  TRIAL   OF   THE    OFFICERS   AND   CREW 

him  that  holds  pro  termino  vita  vel  annorum,  if  a  man  holds  but  for  a  year 
he  is  within  the  statute ;  while,  if  the  law  be  that  for  a  certain  offence  a  man 
shall  lose  his  right  hand,  and  the  offender  hath  had  his  right  hand  before  cut 
off  in  the  wars,  he  shall  not  lose  his  left  hand,  but  the  crime  shall  rather  pass 
without  the  punishment  which  the  law  assigned  than  the  letter  of  the  law 
shall  be  extended. 

11  A  penal  law,  then,  shall  not  be  extended  by  equity ;  that  is,  things 
which  do  not  come  within  the  words  shall  not  be  brought  within  it  by  con 
struction. 

"  The  law  of  England  does  not  allow  of  constructive  offences,  or  of  arbi 
trary  punishments.  No  man  incurs  a  penalty  unless  the  act  which  subjects 
him  to  it  is  clearly  both  within  the  spirit  and  the  letter  of  the  statute  im 
posing  such  penalty. 

"  'If  these  rules  are  violated,'  said  Best,  C.  J.,  in  the  case  of  Fletcher  vs. 
Lord  Sondes,  3  Bing.,  580,  *  the  fate  of  accused  persons  is  decided  by  the  ar 
bitrary  discretion  of  Judges,  and  not  by  the  express  authority  of  the  laws. 
3d  Dwarris  Stat.,  634.' 

"  By  another  restrictive  rule  of  construing  penal  statutes,  if  general  words 
follow  an  enumeration  of  particular  cases,  such  general  words  are  held  to 
apply  only  to  cases  of  the  same  Icind  as  those  which  are  expressly  mentioned. 
By  the  14  Geo.  2,  C.  1,  persons  who  should  steal  sheep  or  any  other  cattle 
were  deprived  of  the  benefit  of  clergy.  The  stealing  of  any  cattle,  whether 
commonable  or  not  commonable,  seems  to  be  embraced  by  these  general 
words,  "any  other  cattle"  yet  they  were  looked  upon  as  too  loose  to  create  a 
capital  offence.  By  the  15  George  2,  C.  34,  the  Legislature  declared  that 
it  was  doubtful  to  what  sorts  of  cattle  the  former  Act  extended  besides  sheep, 
and  enacted  and  declared  that  the  Act  was  made  to  extend  to  any  bull,  cow, 
ox,  steer,  bullock,  heifer,  calf,  and  lamb,  as  well  as  sheep,  and  to  no  other 
cattle  whatsoever. 

"Until  the  Legislature  distinctly  specified  what  cattle  were  meant  to  be 
included,  the  Judges  felt  that  they  could  not  apply  the  statute  to  any  other 
cattle  but  sheep. 

"The  Legislature,  by  the  last  Act,  says  that  it  was  not  to  be  extended  to 
horses,  pigs,  or  goats,  although  all  these  are  cattle. 
"  3  Bingh.,  581. 
"  2  Dwarris,  Statutes,  635." 

By  the  English  law,  and  by  the  principles  of  general  law, 
may  it  please  the  Court,  the  offence  must  be  clearly  defined — 
it  must  be  limited,  ascertained,  fixed.  It  must  be  clear  to  the 
accuser.  It  must  be  clear  to  the  accused.  It  must  be  equally 
clear  to  the  Judge.  It  must  leave  him  no  discretion  whereby 
he  can  enlarge  or  alter  it.  And,  may  it  please  the  Court,  this  is 
the  safe  and  true  principle  of  construction — to  give  as  little  as 
possible  to  the  discretion  of  the  Courts  ;  fur  it  has  been  well 
said,  that  the  arbitrary  discretion  of  any  man  is  the  law  of 
tyrants.  It  is  always  unknown  ;  it  is  different  in  different  men  ; 
it  is  casual,  and  depends  on  constitution,  temper,  and  passion. 
In  the  best  of  us  it  is  oftentimes  caprice ;  in  the  worst  of  us  it 
is  every  vice,  folly  and  passion  to  which  human  nature  is  lia 
ble.  It  is  by  defining  crime  clearly  that  the  citizen  has  his 
strongest  guarantee  for  his  personal  safety.  Let  us  see  the 
opinion  of  perhaps  the  greatest  muster  that  ever  touched  the 
subject  of  jurisprudence — 1  mean  Montesquieu. 


OF   THE    SCHOONER   SAVANNAH.  213 

"  It  is  determined,"  he  says,  "  by  the  laws  of  China, that  whoever  shows 
any  disrespect  to  the  Emperor  is  to  be  punished  with  death.  As  they  do  not 
mention  in  what  this  disrespect  consists,  every  thing  may  furnish  a  pretext 
to  take  away  a  man's  life,  and  to  exterminate  any  family  whatsoever. 

"  If  the  crime  of  high  treason  be  indeterminate,  this  alone  is  sufficient  to 
make  the  Government  degenerate  into  arbitrary  power."— Montesquieu,  Spirit, 
Book  12,  c.  7. 

Now,  may  it  please  the  Court,  it  is  through  statutes  in 
which  crimes  are  ill-defined — are  not  clearly  and  distinctly  de 
signated — that  tyrants  in  every  age  have  been  able  to  crush 
their  victims.  Hence,  in  the  noble  system  of  laws  that  it  is 
your  honors'  privilege  to  dispense,  safeguards  have  been  put  in 
the  strongest  degree,  and  bulwarks  have  been  erected  around 
the  life,  the  liberties,  and  the  rights  of  the  citizen. 

Now,  what  is  an  "  act  of  hostility  "  ?  Suppose  these  men 
had  gone  out  with  a  commission  instructing  them  to  go  on  the 
seas,  to  board  vessels,  and  to  beat  the  captains  of  vessels,  and 
to  do  no  more — to  abandon  them  then,  and  take  to  their  own 
ships — would  that  be  an  act  of  piracy  ?  Is  it  not  plain  that 
the  law  meant  piracy  or  robbery,  or  any  "  act  of  hostility  " 
ejusdem  generis^  that  is,  animo  jurandi  f  To  show  that  this 
construction  is  not  forced,  your  honors  will  find  in  the  Act  of 
March  3d,  1825  (Dunlop's  Laws,  p.  723,  sect.  6),  that  a  special 
law  was  passed  for  the  very  purpose  of  punishing  acts  of  hos 
tility  against  the  United  States  and  its  citizens  by  forcibly 
attacking  and  setting  upon  vessels  owned  in  part  or  wholly  by 
either  of  them,  with  intent  to  plunder  and  despoil  the  owners  of 
moneys,  goods,  &c.,  &c.  If,  therefore,  this  construction  of 
these  words,  which  I  respectfully  submit  to  the  Court,  has  any 
weight  in  it,  they  amount  to  no  more  than  what  has  been, 
already  decided  in  Clintock's  case — the  clear  and  well-settled 
principle  of  law  that  the  commission  shall  not  form  a  pretext 
for  robbery. 

But,  may  it  please  the  Court,  as  to  the  ninth  section  of  the 
Act,  it  never  was  contemplated  as  applying  to  organized  States. 
It  was  an  Act  which  was  intended  to  apply  to  individuals 
alone.  States  are  not  the  subjects  of  criminal  law,  nor  can 
you  legislate  against  them ;  and  this  has  been  distinctly  de 
cided.  If  the  Confederate  States  have  been  guilty  of  a  gross 
breach  of  faith  in  the  attempt  to  withdraw  from  the  Confede 
ration,  they  may  be  coerced  ;  but  the  citizen  himself  must  go 
unpunished.  They  are  States — recognized  by  yourselves  as 
States.  They  are  not  a  collection  of  piratical  hordes ;  and  under 
such  circumstances  the  law  will  not  apply  to  the  citizen  of  any  of 
these  States  who  acts  fairly  and  honestly  under  his  commission. 

The  learned  counsel  who  spoke  last  Saturday,  referred  to 
privateering  as  a  relic  of  the  barbarous  age.  No  one  agrees 


214  TRIAL   OF   THE   OFFICERS   AND   CREW 

with  the  learned  counsel  in  that  respect  more  than  I  do ;  and 
from  the  bottom  of  my  heart  I  hope  that  he  may  be  yet  able  to 
take  his  share  in  banishing  from  the  world  this  relic  of  the  old 
en  time.  But,  really,  I  see  very  little  chance  of  advancement 
in  that  line,  so  long  as  a  vessel  of  war  is  allowed  to  take  private 
property  on  the  seas.  There  should  be  perfect  immunity  for 
all  property  on  the  ocean  belonging  to  individuals ;  but  the  let 
ter  of  Mr.  Marcy  shows  that  we  are  not  yet  exactly  up  to  that 
point. 

The  learned  counsel  stated  that,  before  he  could  concede  the 
commission  in  this  case  to  be  a  justification,  two  things  must 
be  shown :  First,  there  must  be  a  state  of  war ;  and,  second, 
the  privateer  must  have  received  his  commission  from  some 
public,  national,  sovereign  power.  Well,  we  think  we  have 
shown  the  existence  of  war  sufficiently  strongly  ;  and  as  to  this 
point,  I  fancy  that  few  gentlemen  of  the  bar  can  forget  the 
pointed  and  admirable  allusion  of  the  learned  counsel  himself 
(Mr.  Evarts),  in  his  argument  in  the  District  Court,  some  time 
since,  to  the  absent  clerk,  in  illustrating  the  fact  of  the  exist 
ence  of  war.  I  remember  how  forcibly  it  struck  me  when  I 
read  it.  The  decisions  in  the  case  of  the  South  American  pri 
vateers  settles  the  point  as  to  the  nationality. 

But,  gentlemen,  there  is  another  subject  to  which  I  will 
briefly  allude — that  is,  the  abstract  right  of  these  States  legally 
to  secede.  Now,  gentlemen,  we  do  not  deny  that  there  is  no 
such  right.  I  concede  all  that.  Yet,  still,  these  men  have  ever 
held  different  notions ;  and,  on  this  subject,  a  line  has  been 
drawn  for  many  years  through  an  immense  tract  of  this  our 
country.  The  right  or  the  wrong  of  it  does  not  affect  us  here. 
You  have  failed  to  convince  them,  and  they  have  failed  to  con 
vince  you.  There  is  no  common  arbiter  between  you,  because 
they  contend  that,  being  sovereigns,  they  cannot  submit  to  the 
Courts  questions  between  themselves  and  the  United  States. 
Now,  they  may  be  wrong,  but  have  you  the  right  to  declare 
them  so  ?  You  ought  to  be  perfectly  certain.  Justice,  reason, 
and  duty  prompt  that  there  ought  to  be  no  mistake,  When 
you  hold  a  party  for  a  criminal  charge,  there  ought  not  to  be  a 
reasonable  doubt.  Is  there  no  possibility  that,  in  the  course  of 
the  proceedings  between  the  Federal  and  State  Governments, 
you  may  be  wrong  ?  Does  truth  only  consort  with  one  side  of 
the  line,  and  falsehood  with  the  other?  May  you  not  be  mis 
taken?  Look  at  the  different  lights  in  which,  for  years,  you 
have  respectively  viewed  various  questions.  See  how  gradu 
ally  the  change  has  been  effected ;  and  yet  how  stronger  and 
stronger  it  has  grown  day  by  day.  Can  any  one  forget  the  deep 
and  intense  anxiety  with  which  that  great  statesman,  Mr.  Clay, 
just  before  his  death,  regarded  the  division  between  the  Method- 


OF  THE   SCHOONER   SAVANNAH.  215 

let  and  Baptist  Churches  of  the  North  and  the  South  ?  And  yet 
no  man  was  a  truer  or  firmer  patriot,  or  an  abler  advocate  of  the 
Government ;  and  no  man  saw  with  more  unerring  certainty 
that  the  line,  sooner  or  later,  was  destined  to  be  drawn  between 
the  two  sections,  unless  some  compromise  was  effected. 

Now,  the  doctrine  in  which  these  men  have  been  brought  up 
may  be  political  heresy  ;  but,  do  you  crush  a  heresy  with 
chains?  Does  history  not  tell  us  how  utterly  vain  and  futile 
such  an  attempt  is  ?  Have  you  to  go  back  farther  than  the 
days  of  James  the  Second,  to  see  the  attempt  of  that  despot 
to  enforce  upon  the  English  people  a  religion  which  they  did 
not  choose  to  adopt  ?  Can  you  forget  the  bloody  assizes  of 
Jeffreys,  when  hundreds  were  carried  to  the  block  and  thou 
sands  were  sent  into  exile  to  all  parts  of  the  world  ?  Can  you 
forget  the  great  scene,  when  the  noble  Duke  of  Argyle,  with 
his  head  bared  and  his  limbs  in  chains,  was  led  through  Edin 
burgh  amidst  the  reproaches  and  contempt  of  the  populace ; 
and  do  you  forget  the  cold  and  manly  dignity  with  which  he 
endured  it  all  ?  And  do  you  reflect  that,  with  all  these  things, 
the  religion  of  England  to-day  is  the  same  as  it  was  then  ?  Can 
you  expect,  by  a  system  like  this,  to  mould  the  human  mind 
as  you  would"  mould  potter's  clay  ?  Oh,  no !  gentlemen,  the 
human  heart  is  a  different  thing;  love  and  tenderness  may 
melt  and  control  it,  but  chains  and  manacles  never  yet  subdued 
it.  Call  this  piracy !  why  this  is,  indeed,  confounding  the 
order  of  things ;  and  when  the  real  piracy  comes,  you  will  feel 
no  dislike  or  contempt  for  the  offence.  You  give  it  a  dignity 
by  thus  confounding  it  with  crimes  of  a  different  nature.  If 
these  men  are  pirates,  all  are  pirates  who  have  taken  naval 
commissions  from  the  Confederate  States,  and  all  are  robbers 
who  have  served  them  on  land.  Pirates  !  Is  Tatnall  a  pirate — 
Tatnall  who,  by  his  skill,  and  valor,  and  daring,  succeeded  in 
landing  your  gallant  army  in  Mexico,  challenging  on  that  occa 
sion  the  admiration  alike  of  the  army  and  navy  ?  Tatnall  a  pi 
rate  !  Tatnall,  whose  name  has  been  for  forty  years  the  synonym 
of  all  that  is  high  and  noble  and  brave  in  the  American  navy ! 
Is  Hartsteine  a  pirate — Hartsteine,  the  modest  but  hardy 
sailor,  who  carried  your  ensign  into  the  far,  remote,  and  un 
friendly  regions  of  the  frigid  zone  ?  Is  Ingraham  a  pirate — 
Ingraham,  who,  when  the  down-trodden  naturalized  refugee 
from  Austria  asked  for  the  protection  of  the  American  nag 
said,  "  Do  you  want  the  protection  of  this  flag? — then  you  shall 
have  it !"  Are  these  men  pirates  ?  Oh,  no !  gentlemen ;  there 
is  some  mistake  about  this.  Is  Lee  a  robber — Lee,  the  chosen 
and  bosom  friend  of  your  venerable  commander  in  Washing 
ton,  and  who,  but  a  few  months  ago,  parted  from  him  with  an 
aching  heart  and  eyes  brimful  of  tears?  Lee,  a  robber!  Lee, 


216  TRIAL    OF   THE    OFFICERS    AND    CREW 

whose  glory  is  yours,  and  whose  name  is  written  on  every  page 
of  your  country's  history  which  attests  the  triumphant  march 
of  your  army  from  Yera  Cruz  to  the  gates  of  Mexico  ?  Me- 
thinks  I  see  the  flash  of  fire  light  the  eye,  and  the  curl  of  con 
tempt  play  upon  the  lips,  of  tlie  old  hero  of  Lundy's  Lane,  as 
he  hears  the  foul  imputation  upon  the  stainless  honor  of  the 
well-tried  friend  of  many  years.  No,  gentlemen,  these  men 
are  not  pirates!  they  are  not  robbers!  Your  own  hearts  tell 
you  they  are  not.  truly,  it  may  indeed  be  said,  that  civil  war 
does  pervert  the  natural  taste,  and  relish  of  equity  and  of 
justice. 

But,  gentlemen,  what  is  the  object  of  this  prosecution? 
Can  the  United  States  desire  revenge  on  these  men?  That  is 
a  passion  not  attributable  to  States.  States  have  no  passion. 
The  dignity  and  the  power  of  a  State  ought  to  make  it  tolerant. 
Is  it  because  the  President's  proclamation  has  pronounced  these 
men  pirates?  Certainly,  the  respected  Chief  Magistrate  of 
these  United  States  has  no  disposition  to  enforce  this  law,  sim 
ply  because  he  has  declared  it,  as  in  the  case  of  King  Ahasue- 
rus.  Is  their  punishment  sought  for  the  good  of  the  commu 
nity  ?  If  it  is  designed  for  such  a  purpose,  its  eifect  is  very 
questionable. 

It  is  extremely  strange,  gentlemen,  that  the  prosecution 
should  have  been,  any  how,  brought  on  now,  and  under  this 
Act.  Is  it  a  strange  fact,  gentlemen,  that,  under  the  Act  of 
William  the  Third,  which  has  been  cited  to  you,  there  was  not, 
during  the  American  Revolution,  a  single  American  priva- 
teersman  ever  brought  to  trial  in  England.  And  yet  the  En 
glish  Government  repeatedly  captured  them,  and  put  them  in 
prison.  That  Act  is  just  as  strong  as  this,  for  the  ninth  section 
of  our  Act  of  1790  is  copied  from  it.  I  suppose  the  truth  is, 
gentlemen,  that  the  English  Government  felt  the  utter  inap 
plicability  of  that  law  to  a  case  of  this  kind. 

But,  it  is  time  that  I  should  draw  to  a  close.  If  these  men 
have  been  brought  into  the  position  in  which  they  now  stand, 
much  depends  upon  their  political  education — much  depends 
upon  the  different  views  with  which  they  have  regarded  this ques 
tion  from  ourselves.  It  is  the  part  of  humanity  to  err.  These 
men  are  the  representatives  of  those  who  were  once  united  with 
us  in  the  gentle  tie  of  brotherhood.  That  tie  is  now  rent,  and 
it  may  be  years  before  the  kindly  and  good  feeling  which  once 
subsisted  between  the  sections  is  restored.  God  grant  that  the 
hour  may  not  be  far  distant!  But,  gentlemen,  to  treat  these 
men  with  kindness ;  to  treat  them  with  humanity ;  to  have  re 
spect  for  that  great  principle  which  underlies  the  bottom  of  our 
own  Government — the  right  of  resistance  (and  I  mean  here  le- 


OF   THE   SCHOONER   SAVANNAH.  217 

gal  resistance,  and  not  that  revolutionary  resistance  which  the 
Courts  of  justice  do  not  adopt,  and  never  have,  and  cannot  sanc 
tion), — I  say,  to  treat  them  with  kindness  and  humanity  will  do 
more,  in  my  honest  belief,  to  knit  together  the  two  sections 
than  a  hundred  battle-fields  would  do. 

Gentlemen,  if  there  has  been  a  division  between  you,  re 
member  that  that  division  has  sprung  up  from  honest  convic 
tion.  Can  you  think  otherwise  ?  Shoulder  to  shoulder  with 
your  fathers,  in  the  days  of  the  Revolution,  their  fathers  fought 
the  battles  of  freedom.  Side  by  side  with  you,  they  trod  the 
burning  plains  of  Mexico,  and  encountered,  in  hostile  strife,  the 
foes  of  your  country ;  and  when  the  shock  of  battle  was  over, 
wrapped  in  the  same  honored  flag,  their  dead  and  yours  were 
borne  to  their  final  resting  place.  Is  it  for  a  light  and  a  trifling 
cause  that  they  have  thus  separated  from  you? 

In  conclusion,  gentlemen,  let  me  beg  you  to  meet  this  issue 
like  men.  No  matter  what  the  pressure  upon  you  is,  stand 
firm,  do  justice,  and  discharge  these  prisoners.  In  so  doing, 
you  will  but  do  your  duty,  and  God  himself  will  sanction  the 
act.  But,  gentlemen,  if  deaf  to  the  promptings  of  reason,  of 
justice,  and  of  humanity — if,  impelled  by  political  rancor  and 
passion — you  condemn  these  prisoners,  and  execution  follows 
condemnation,  be  assured  that  they  will  meet  their  fate  like 
men ;  and  that  these  manacled  hands,  which  you  have  so  often 
disported  through  your  streets  to  excited  crowds,will,  "  though 
impotent  here,"  be  lifted,  and  not  in  vain,  to  a  far  more  august 
tribunal  than  this,  before  whose  unerring  decrees  Courts  and. 
nations  alike  must  bow  with  awful  reverence. 


218  TRIAL    OF   THE   OFFICERS   AND   CREW 


AKGUMENT  OF  ME.  SULLIVAN. 

Mr.  Sullivan,  of  Counsel  for  the  prisoners,  said : 

May  it  please  the  Court :  Gentlemen  of  the  Jury  : 

This  case  has  brought  to  my  mind  an  interesting  episode  in 
ancient  history,  to  which  I  beg  permission  to  refer.  For  many 
years,  the  States  of  Greece  had  been  engaged  in  bloody  civil 
strife,  which  ended  in  the  discomfiture  of  Athens.  The  Spar 
tans  and  their  allies  assembled  in  council  to  consider  and  de 
termine  on  her  fate.  Animated  by  resentful  passion,  the 
Thebans  urged  extreme  and  vindictive  measures:  that  Athens 
should  be  razed  to  the  ground,  that  the  hand  of  the  victorious 
States  should  fall  heavy,  and  the  Athenians  be  proclaimed 
exiles  from  their  homes  and  outlaws  in  Greece.  This  proposal 
was  applauded  by  the  Corinthians  and  some  others,  but  at  that 
moment  the  deputy  of  the  Phocians,  who  owed  a  debt  of  grati 
tude  to  the  Athenians,  sang  in  the  assembly  the  mournful 
Choral  Ode  from  the  Electra  of  Sophocles,  which  moved  all 
present  in  such  a  manner  that  they  declared  against  the  design. 
The  poem  had  lifted  them  from  the  passion  of  the  hour,  and 
invoked  the  memories  and  ancestral  glories  of  their  common 
nation.  The  spirits  of  departed  heroes  now  lent  the  inspira 
tion  of  their  presence,  and  yielding  to  it  the  members  of  that 
council  and  jury  became  great  Greeks,  as  of  old  their  fathers 
were.  Marathon  and  Salamis,  Platsea  and  Mycale,  were  pic 
tured  in  the  chambers  of  their  souls,  with  Miltiades,  Themis- 
tocles  and  Aristides  for  their  counselors ;  and  then,  and  not 
until  then  were  they  fit  to  render  a  verdict  upon  Athens,  the 
loveliest  sister  of  them  all. 

And  gentlemen,  before  we  touch  upon  the  details  of  this 
case,  may  we  not  contemplate  some  examples  and  sentiments 
which  will  enlighten  and  strengthen  our  spirits  as  guardians  of 
the  important  interests  committed  to  our  hands  this  day  ?  I 
am  sure  it  will  be  agreeable  to  you  and  to  seek  them  in  the 
annals  of  our  forefathers, 

"  The  great  of  old, 

The  dead  but  sceptred  sovereigns,  who  still  rule 
Our  spirits,  from  their  urns." 

It  may  be  that  a  voice  like  that  of  the  Theban  delegate, 
and  like  the  voice  of  Corinth,  is  sounding  in  your  ears,  and 


OF  THE   SCHOONER  SAVANNAH.  219 

appealing,  by  sophistries,  and  passion,  and  prejudices,  to  you^to 
lay  the  hand  of  your  Government  with  all  possible  severity 
upon  those  of  her  enemies  who  are  now  in  her  power  and 
arraigned  at  her  bar.  But  I  entreat  you  to  lift  yourselves  to 
that  stand-point  from  which  our  ancestors,  who  founded  this 
Union,  who  enacted  the  law  upon  which  this  prosecution  is 
founded,  would  have  regarded  a  case  analagous  to  that  of  Cap 
tain  Baker  and  the  other  defendants  herein.  What  was  the 
central  and  distinguishing  idea  of  Government,  blazing  like 
another  sun  on  the  world,  which  our  fathers  established  and 
made  honorable?  Was  it  not  the  imperishable  doctrine  of 
revolutionary  right — and  that  without  special  regard  to  the 
names,  and  forms,  and  paths  through  which  it  might  be  sought  ? 
For  many  other  causes  they  may  have  pledged  their  fortunes ; 
there  were  many  for  which  they  periled  their  lives  ;  but  only 
for  this  is  it  recorded  by  them,  "  We  pledge  our  sacred  honor. 
It  is  their  incommunicable  glory  that  they  consummated  their 
purpose  ;  and  if  for  anything  we  have  a  place  in  history  and  a 
name  in  the  world,  it  is  that  we  have  hitherto  professed  to  be 
the  special  guardians  of  that  principle  among  the  nations. 
Will  you  rise  with  me  to  the  dignity  and  affecting  associations 
that  surrounded  and  auspicated  the  struggle  of  our  forefathers 
for  this  principle  ?  Shall  their  memory  be  your  guiding  light, 
and  their  honorable  purpose  that  upon  which  your  thoughts 
will  linger?  Let  us  subject  our  hearts  to  their  influence,  for 
it  will  not  mislead  us.  And,  now,  would  our  fathers  with 
casuistry  and  technical  constructions  of  a  statute  which  they 
never  meant  should  apply  to  such  a  case  as  the  present,  pro 
nounce  judgment  of  piracy  and  outlawry  against  any  people 
who  were  making  an  eifort,  by  the  recognized  forms  of  war,  to 
assert  revolutionary  right  and  independent  self-government  for 
themselves  ?  Never !  And  while  the  page  on  which  our 
fathers'  history  is  written  is  lustrous,  it  would  be  readorned 
with  all  the  beauty  of  immortal  splendor,  if  under  it  were 
written  to-day,  "That  which  the  American  people  of  1776 
claimed  for  themselves  (the  right  to  c  dissolve  the  political 
bands  that  bound  them  to  another'),  they  possessed  the  great 
ness  of  soul,  in  1861,  to  acknowledge  against  themselves,  when 
another  portion  of  the  same  race  sought  the  same  end.  Be 
guiled  by  the  almost  omnipotent  sophistries  of  interest  and 
passion,  they  have  nevertheless  adhered  in  loyal  faith  to  their 
time-honored  doctrine  of  free  government.  In  the  faithful 
devotion  of  the  Sons,  the  principles  of  the  Fathers  have  been 
revindicated.  Henceforth  the  nation  must  stand  unapproach 
able  in  their  greatness." 

Why  I  make  these  observations,  gentlemen,  is,  that  when 
the  officers  of  the  United  States  ask  you  to-day  to  find  a  ver- 


220  TRIAL   OF  THE   OFFICERS   AND   CREW 

diet  of  guilty  against  these  prisoners,  they  ask  you  to  do  that 
which,  shape  it  and  distort  it  and  reason  about  it  as  they  may, 
is  asking  you  to  lift  an  impious  hand  and  strike  a  parricidal 
blow,  conspicuous  in  the  eyes  of  the  world,  against  the  ever 
sacred  doctrine  which  our  ancestors  transmitted  to  us  as  their 
best  legacy  and  a  part  of  their  own  good  name.  Will  you 
abandon  it  ?  Nay,  rather  cling  to  it, 

"As  one  withstood  clasps  a  Christ  upon  the  rood, 
In  a  spasm  of  deathly  pain." 

I  wish  now,  gentlemen,  to  ask  you  to  go  with  me  a  moment 
to  the  deck  of  the  Perry,  when  she  captured  the  Savannah 
and  her  crew.  Let  us  recall  the  historical  incidents  of  the 
capture,  and  the  preparations  for  the  trial,  that  we  may  intro 
duce  this  case  as  justice  requires. 

The  Savannah  was  captured  on  the  Atlantic  Ocean,  about 
fifty-five  miles  from  Charleston.  The  Commander  of  the 
Perry,  who  at  that  moment  represented  the  United  States 
Government,  virtually  said  to  the  defendants  herein,  "  We 
propose  to  try  you  as  citizens  of  the  United  States,  who,  by 
acting  under  a  commission  of  letter  of  marque  from  the  Con 
federate  States,  have  become  liable  to  the  penalties  of  the  Uni 
ted  States  law  against  piracy."  The  prisoners  at  once  reply, 
"  If  that  is  true,  take  us  into  the  nearest  ports  for  trial.  They 
are  in  SouthCarolina.  You  claim  that  she  is  a  part  of  the  Uni 
ted  States,  and  that  her  citizens  (i.  e.,  ourselves)  are  amenable 
to  your  laws,  and  that  the  United  States  are  sovereign  there. 
Take  us  before  one  of  your  Courts  in  that  State  and  try  our 
case."  "  Oh !  no,  (say  the  United  States)  we  cannot,  with  all 
our  guns,  land  upon  the  shores  of  South  Carolina."  "  Well, 
take  us  into  the  adjoining  State,  Georgia."  "No;  there  is 
not  an  officer  of  the  United  States  in  Georgia.  We  cannot 
protect  or  sustain  a  single  law  in  Georgia."  "  Well,  take  us  to 
Florida,  Alabama,  Mississippi,  Louisiana  or  Texas — any  place 
along  that  extended  coast  of  over  two  thousand  miles."  "  No, 
(say  the  United  States)  throughout  all  that  coast,  we  confess 
to  you,  Capt.  Baker,  that  we  Have  not  a  Court,  not  an  officer, 
we  cannot  execute  a  single  law."  "Well,  take  us  north,  into 
North  Carolina,  or  into  Virginia."  The  reply  of  the  United 
States  is  still,  "  We  have  no  place  there.  But,  notwithstand 
ing  we  admit  that  throughout  that  territory  we  have  no  prac 
tical  existence ;  we  have  no  Court ;  we  have  no  civil  function 
aries  ;  we  have  no  protection  for  allegiance  to  us  ;  we  have 
not  a  citizen  who  acknowledges  his  allegiance  to  us ;  we 
admit  that  the  people  in  those  States  have  excluded  our  gov 
ernment  and  established  another,  which  is  in  active  and 
exclusive  control — notwithstanding  all  this,  you  are  still  our 


OF  THE   8CHOONEB   SAVANNAH.  221 

citizens ;  and  none,  nor  all  of  these  facts,  relieve  you  from  the 
guilt  and  liability  to  punishment." 

The  defendants  are  accordingly  put  in  chains  and  brought 
to  the  District  of  New  York  for  trial.  The  witnesses  for  the 
prosecution  prove  all  the  facts  that  are  in  the  case,  and  we 
stand  willing  to  be  tried  by  them.  They  prove  that  the  de 
fendants  did  capture  a  brig  on  the  high  seas,  which  brig  be 
longed  to  citizens  of  the  United  States.  They  prove,  further, 
that  the  defendants  at  the  time  of  the  capture,  and  in  the  act, 
alleged  that  they  did  so,  in  the  name  and  on  behalf  of  the 
"  Confederate  States  of  America,"  and  by  authority  derived 
from  them,  as  an  act  of  war  between  the  two  Governments. 

The  authority  and  intent  thus  alleged  for  the  capture,  were 
they  honestly,  or  only  colorably  alleged  ?  Were  they  a  justi 
fication  of  the  act,  so  far  as  this  prosecution  is  concerned,  or 
not? 

First :  Was  it  true  that  the  capture  of  the  Joseph  was  in 
the  name  of  the  Confederate  States?  The  fact  is,  that  when 
the  Savannah  approached  and  summoned  the  Joseph  to 
surrender,  the  captain  of  the  Savannah  stated  his  purpose 
to  be  as  I  have  repeated  ;  he  hoisted  the  Confederate  flag  ;  he 
wore  the  uniform  and  insignia  of  an  officer  of  the  Confederate 
States  ;  he  had,  as  the  paper  upon  which  his  vessel  was  docu 
mented,  a  paper  which  has  been  produced  before  us,  and  which 
bears  the  broad  seal  of  the  "  Confederate  States  of  America," 
which  authorizes  him  to  take  the  Savannah  as  a  private 
armed  vessel,  and,  in  the  name  and  authority  of  the  Confeder 
ate  States,  to  "  make  war"  against  the  United  States  and  her 
vessels.  The  facts  preclude  any  possible  suggestion,  that  the 
defendants  made  any  false  pretence  on  the  subject.  The  de 
fendants  had  every  adequate  and  sufficient  warrant  for  what 
they  did,  if  the  "  Confederate  States  of  America"  could  give 
any  authority  which  would  constitute  a  defence,  or  if  there 
was  anything  in  the  state  of  the  contest  between  the  United 
States  and  the  Confederate  States  which  constitutes  war.  But, 
the  question  will  present  itself,  even  if  the  defendants  had  this 
warrant  from  the  Confederate  States — Did  they  intend  to,  and 
did  they  in  fact  comply  with  its  requirements,  or  were  they 
abusing  and  transgressing  its  license,  and  engaged  in  freeboot- 
ing?  Did  they  intend  to  infract  the  regulations  prescribed  for 
their  control  by  the  Government  of  the  Confederate  States  and 
imposed  imperatively  by  the  law  of  nations  upon  legitimate 
privateers,  or  did  they  intend  to  rob  and  steal  ?  I  think  I  may 
safely  assert  that  the  law  officers  of  the  United  States  will  ad 
mit  that  the  defendants  intended  in  good  faith  to  comply  strict 
ly  and  literally  with  all  the  conditions  of  their  authority,  pre 
scribed  by  their  own  Government  for  their  conduct,  and  also 


222  TKIAL   OF   THE   OFFICERS    AND   OEEW 

with  the  code  of  war  in  the  law  of  nations.  And  not  only 
was  this  their  general  intention,  but  as  a  fact,  their  conduct 
furnishes  not  a  single  deviation  from  these  requirements.  I 
read  to  the  Court  and  Jury  the  Regulations  published  by  the 
Confederates,  for  the  privateers,  and  which  were  found  to  be 
on  board  of  the  Savannah  at  the  time  of  her  capture.  They 
are  similar,  in  all  of  their  provisions,  to  those  usually  prescribed 
by  civilized  nations  at  war.  In  substance,  they  permitted  the 
privateers  to  capture  the  vessels  and  cargoes  belonging  ^o  the 
United  States  and  her  citizens,  the  capture  to  be  made  in  the 
name  of  the  Confederate  States ;  they  forbade,  after  capture, 
any  disturbance  or  removal  of  the  furniture,  tackle,  or  cargoes 
of  the  captured  prizes,  and  required  immediate  transmission,  to 
a  proper  Court,  of  the  prize,  for  adjudication.  Did  the  defend 
ants  comply  with  these  terms  ?  The  evidence  is  too  plain  that 
they  did,  to  admit  the  slightest  doubt. 

As  soon  as  the  Joseph  was  captured,  a  prize  crew  was  put 
on  board  of  her  and  she  was  sent  to  the  care  of  an  Admiralty 
Court  in  a  home  port,  and  her  papers,  books  and  crew  were 
sent  along,  that  the  Court  might  have  the  fullest  evidence  of 
the  ownership  and  character  of  the  captured  vessel,  and  be  able 
to  decide  properly,  whether  or  not  she  was  liable  to  capture. 
If  the  defendants  had  any  corrupt  or  furtive  motives,  or  if  they 
had  been  indifferent  to  their  assumed  obligations,  would  they 
have  been  so  scrupulous  in  furnishing  all  the  evidence  to  the 
Court?  Did  they  destroy,  alter  or  erase  any  evidence,  or 
offer  to  do  so  ?  Did  they  evince  the  least  desire  to  have  any 
other  than  the  full  facts  appear  with  regard  to  all  their  acts  ? 
Your  answer,  with  mine,  is  No !  And  when  the  vessel  arrived 
in  port,  observe  what  proceedings  were  instituted  by  the  agent 
of  the  captors.  He  did  not  oner  to  sell  the  vessel  and  cargo 
at  private  sale ;  he  did  not  offer  to  submit  her  disposition  to 
the  adjudication  of  any  merely  State  Court;  but  caused  her  to 
be  libeled  in  a  Prize  Court,  constituted  on  precisely  the  same 
basis,  and  enforcing  the  identical  rules  of  law  with  the  United 
States  Prize  and  Admiralty  Court,  which  convenes  in  the  room 
adjoining  to  that  in  which  we  now  are.  In  fact,  I  am  safe  in 
saying  that  the  decisions  of  our  Courts  here  are  controlling 
precedents  in  the  Court  wherein  the  brig  Joseph  was  tried  and 
condemned  as  a  prize  of  war.  The  trial  was  in  a  Court  known 
to  and  recognized  by  the  law  of  nations.  Now,  gentlemen,  I 
certainly  need  do  no  more  than  thus  re-advert  to  the  facts  in 
evidence  to  remove  from  your  minds  the  slightest  suspicion 
that  the  defendants  ever  intended  to  violate  the  laws  of  war 
or  the  instructions  received  from  their  Government  when  they 
received  their  letter  of  marque. 

Perhaps,  however,  the  question  may  arise, — whether  the 


OF   THE    SCHOONER   SAVANNAH.  223 

defendants  did  regard  the  commission  under  which  they  sailed 
as  competent  and  adequate  authority  to  j  ustify  their  acts  ;  or 
were  they  distrustful  of  its  sufficiency  ?  I  do  not  admit,  gen 
tlemen,  that  that  is  a  consideration  to  which  in  this  trial  we 
should  recur,  for  your  decision  must  rest  on  other  grounds. 
But,  I  will  not  hesitate  to  say,  that  it  is  morally  impossible  for 
any  man  who  has  heard  the  evidence,  and  who  is  familiar  with 
the  course  of  events  in  the  South,  to  believe  that  the  defend 
ants  ,did  not  act  in  the  fullest  confidence  that  the  authority 
of  the  Confederate  States  was  ample  and  just  authority  for 
their  undertaking.  Even  that  one  of  the  Savannah's  crew 
who  has  become  a  witness  for  the  prosecution,  under  a  nolle 
prosequi)  asserted  on  the  stand,  that  at  the  time  the  Savannah 
was  being  fitted  out  for  her  cruise  as  a  privateer,  no  one  in  the 
community  of  the  South  seemed  to  have  any  other  idea  but 
that  the  Government  of  the  Confederate  States  was  completely 
and  legally  established,  and  that  every  citizen  of  those  States 
owed  to  it  supreme  allegiance.  They  believed  that  a  letter  of 
marque  from  the  Confederate  States  constituted  as  good  author 
ity  for  privateering  as  the  letters  which  were  issued  by  our 
revolutionary  fathers  in  '76,  or  as  if  they  were  issued  by  the 
United  States.  But,  gentlemen,  we  are  to  proceed  one  step 
further,  for  under  the  theory  presented  by  attorneys  for  the 
prosecution,  they  virtually  admit  that  there  was  good  faith  on 
the  part  of  the  prisoners,  and  that  they  intended  to  comply 
with  the  restrictions  imposed  by  the  authority  which  they 
carried  out  of  port  with  them.  *But  they  say  that,  inasmuch 
as  the  Confederate  States  were  not  a  recognized  Government, 
they  could  not  confer  any  right  upon  the  defendants  to  act  as 
privateers,  which  could  justify  them  in  a  plea  to  the  pending 
charge.  That  is  a  proposition  which  enfolds  the  real  issue  in 
this  trial.  The  difficulties  in  respect  to  its  solution  do  not  ap 
pear  to  me  to  be  great,  and  I  am  satisfied  that  the  more  they 
are  examined  the  less  they  will  appear  to  candid  minds. 

Had  the  Government  of  the  Confederate  States  a  right  to 
issue  letters  of  marque  ;  or,  in  other  words,  to  declare  and  wage 
war  ?  The  denial  of  that  right,  by  the  attorneys  for  the  United 
States,  involves  them  in  inextricable  embarrassments,  and  must 
expose  the  fallacies  which  lie  at  the  bottom  of  the  erroneous 
reasonings  of  the  prosecution. 

In  the  first  place,  it  is  substantially  an  assertion,  on  the  part 
of  the  United  States,  of  the  doctrine,  "Once  a  sovereign  always 
a  sovereign" — that  the  United  States  Government  cannot — by 
revolution  accomplished — by  the  Act  of  the  States  repealing 
their  ordinances  of  union — by  any  act  of  the  people  establishing 
and  sustaining  a  different  Government — be  divested  of  their 
former  sovereignty.  Or,  in  the  language  of  Mr.  Evarts,  until 


224  TRIAL   OF   THE   OFFICERS    AND   CREW 

there  has  been  some  formal  acquiescence,  some  assent,  some 
acknowledgement  by  the  executive  authority  of  the  United 
States  of  the  independence  of  the  Confederate  States,  there  can 
be  no  other  plea,  and  no  progress  in  any  line  of  investigation, 
with  a  view  to  a  defence  of  these  defendants  in  a  Court  of  jus 
tice  of  the  United  States.  Upon  that  point,  I  beg  to  be  under 
stood  as  taking  an  issue  as  wide  as  it  is  possible  for  human 
minds  to  differ ;  and  I  am  bold  to  assert  that  the  doctrine  can 
not  be  maintained  successfully  in  a  capital  case  of  this  kind. 
It  is  not  true  that  a  recognition  of  the  Confederate  States  by 
the  United  States  executive,  in  a  formal  and  distinct  manner, 
is  requisite  to  entitle  them  and  their  citizens  to  the  rights  be 
longing  to  a  nation,  in  the  eye  of  this  Court.  An  acknowledg 
ment  of  independence  would  be  one  way  of  proving  the  fact, 
but  is  far  from  being  the  only  way.  Proof  of  such  an  acknowl 
edgment  by  a  formal  State  paper  would,  of  course,  term 
inate  this  prosecution ;  but,  in  the  absence  of  that  fact,  there 
may  be  a  recurrence  to  others,  which  will  suffice  as  well, 
and  satisfy  the  Court  and  Jury  that  the  Confederate  States 
must,  at  least,  to  a  certain  extent,  be  regarded  as  a  nation,  en 
titled  to  the  usual  consideration  belonging  to  a  nation  at  war. 
To  show  how  unreasonable  the  proposition  is,  and  to  illustrate 
how  impossible  it  is  to  accept  it,  let  me  submit  a  supposition : 

If,  for  fifty  years  to  come,  the  United  States  shall  not  re 
establish  her  sovereignty  and  restore  her  laws  and  power  over 
the  seceded  States,  and  the  latter  shall  continue  to  maintain  an 
open  and  exclusive  Government ;  and  if  the  United  States  shall 
still  refuse  to  recognize  the  new  Government  by  formal  docu 
mentary  record,  would  the  refusal  then  warrant  the  United 
States  in  capturing  Confederate  armies  of  a  new  generation, 
and  punishing  them  for  treason  and  piracy?  And,  if  so  fifty 
years  hence,  would  it  continue  twice  or  thrice  fifty  years? 
Or  what  is  the  limit  ?  The  difficulties  in  the  answer  can  be 
avoided  in  only  one  way,  and  that  is,  to  conclude  that  the  ac 
knowledgment  of  the  independence  of  the  revolutionizing  sec 
tion  is  of  no  consequence  at  all,  for  all  the  purposes  of  this  case, 
provided  the  fact  of  independence  and  separate  Government 
really  exists,  and  is  proven.  A  de  facto  Government,  merely, 
must  be  allowed  by  every  sound  jurist  to  possess  in  itself,  for 
the  time  being,  all  the  attributes  and  functions  of  a  Government 
dejure.  It  may  properly  claim  for  itself,  and  the  citizen  may 
rightfully  render  to  it,  allegiance  and  obedience,  as  if  the  Gov 
ernment  rested  on  an  undisputed  basis. 

This  is  a  rule  never  denied  in  the  law  of  nations.  History  has 
scarcely  a  page  without  its  record  of  revolution  and  dynastic 
struggle  to  illustrate  this  rule.  The  official  acts  of  a  de  facto 
Government  affecting  personal  rights,  title  to  property,  the  ad- 


OF   THE    SCHOONER    SAVANNAH.  225 

ministration  of  justice,  the  organization  of  its  society,  and  im 
posing  duties  on  the  citizens,  receive  that  consideration  which 
belongs  to  acts  of  long-established  Governments. 

The  successor  does  not  pronounce  the  laws  of  the  predeces 
sor  null.  lie  simply  repeals  them,  with  a  clause  protecting 
all  vested  rights.  This  principle  is  correct,  even  in  case  of  an 
usurping  monarch  ;  but  how  much  more,  it  it  shall  appear  that 
the  people  who  are  to  be  governed,  have,  for  themselves,  with 
mutual  concurrence  and  choice,  cast  oif  the  former  Government, 
and  organized  a  new  one,  avowing  to  the  world  their  purpose  to 
maintain  it,  and  at  the  same  time  yielding  to  it  the  obedience 
which  it  requires  ? 

When  that  state  of  facts  shall  occur,  and  a  people  suffi 
ciently  numerous  to  enable  them  to  fulfill  the  duties  of  a  nation, 
and  with  a  territory  sufficiently  compact  to  enable  its  Govern 
ment  to  execute  its  functions  without  inconvenience  to  the 
world,  shall  evince  its  purpose  and  a  fair  assurance  of  its  ability 
to  maintain  an  independent  Government,  it  will  be  a  surprise, 
indeed,  to  hear,  in  this  country,  that  such  a  people  are  still 
liable  to  felons'  punishment  and  pirates'  doom.  It  is  no  longer 
a  case  of  insurrection  or  turbulent  violence.  It  has  ceased  to 
be  a  tumult  or  a  riot.  The  war  between  the  original  Govern 
ment  and  the  revolutionary  Government  may  still  continue, 
but  no  longer  can  it,  with  propriety,  be  said  that  the  army  is 
merely  the  posse  comitatus,  dispersing  and  arresting  offenders 
against  the  law.  The  conflicting  parties  must,  at  least  for  the 
time,  be  deemed  two  distinct  people — two  different  nations.  The 
evidence  in  this  case  and  the  public  history  of  the  day,  show 
that  such  is  the  condition  of  the  United  States  and  the  Confed 
erate  States.  In  addition  thereto,  the  United  States  have,  by 
repeated  acts,  indicated  that  they  so  regarded  the  fact.  The 
prnicipal  witness  for  the  prosecution  testified  that  he  repeat 
edly  saw  the  officers  of  the  United  States  negotiating,  through 
fla^s  of  truce,  with  the  officers  of  the  Confederate  States  ;  and 
that  always  the  flag  of  truce  from  the  Confederate  States  was 
displayed  with  their  Government  flag,  but  that  fact  never  pre 
vented  the  negotiation.  This  was  well  known  to  our  Govern 
ment.  We  have  in  evidence,  also,  the  agreement  of  capitula 
tion  at  the  surrender  of  the  Forts  at  HatUTas  Inlet.  The  rep 
resentative  of  the  United  States  signed  that  official  document 
and  accepted  it  for  his  Government,  with  the  signature  of  Com 
mander  Barron  to  it  as  "  commanding  the  forces  of  the  Con 
federate  States,"  etc.  That  was  a  virtual  recognition  that  there 
is  such  a  Government,  de  facto. 

A  few  days  since  our  Government  published  another  gen 
eral  order,  or  document,  directing  that  a  certain  number  of 
prisoners,  captured  in  arms  against  the  United  States,  and  when 
15 


226  TRIAL  OF  THE  OFFICERS  AND  GREW 

fighting  under  regular  enlistment  the  army  of  the  Confederate 
States,  should  be  released  as  "  prisoners  of  war,"  because  the 
Confederate  States  had  released  a  similar  number.  That  was 
an  exchange  of  prisoners  of  "  war,"  and  another  virtual  ac 
knowledgment  that  the  Confederate  States  constitute  a  Govern 
ment.  Remember  that  these  "  prisoners  of  war"  had,  if  they 
were  citizens  of  the  United  States,  violated  the  law  in  the  first 
section  of  the  statute  under  the  eighth  and  succeeding  sections 
of  which  this  prosecution  is  founded.  One  class  were  fighting 
on  land  against  the  United  States,  and  the  penalty  is  death  by 
the  statute.  The  defendants  here  fought  on  water;  and  there  is 
the  same  penalty,  if  either  is  liable  to  the  penalties  of  the 
statute.  Both  classes  fought  under  the  same  flag  and  received 
their  commission  from  the  same  Government.  If  one  class  are 
"  prisoners  of  war"  in  the  opinion  of  the  Government  of  the 
United  States,  so  must  the  other  be.  It  is  impossible  to  recede 
from  the  consequences  of  the  virtual  recognition  of  belligerent 
rights  involved  in  the  exchange  of  these  captives,  under  the 
chosen  designation  of  "  prisoners  of  war."  How,  then,  doth 
the  dignity  of  our  Government  suffer  by  this  prosecution  !  It 
evinces  an  indecision,  a  caprice,  a  want  of  consistency  and 
character  on  the  part  of  the  Government.  It  is  an  unfortunate, 
and  I  hope  an  unpremeditated  one.  The  good  name  of  the 
nation  is  involved,  unnecessarily,  by  the  mere  fact  of  arraign 
ment  of  these  defendants  under  an  indictment ;  but  your 
verdict  of  "  not  guilty"  may  yet  save  it. 

The  Jury  will  and  must  accept  the  construction  which  the 
Government  has  in  fact  put  on  the  law,  viz.,  that  it  does  not 
apply,  and  was  never  intended  to  apply,  to  such  a  state  of 
affairs  as  the  present  revolution  has  brought  about. 

Let  me  illustrate  further  the  absence  of  all  reason  to  sup 
port  the  proposition  that,  until  a  formal  acknowledgment  of  the 
existence  of  the  Confederate  States  by  the  United  States,  the 
official  acts  of  the  former  cannot  be  regarded  as  having  any 
validity,  or  as  affording  protection  to  their  citizens.  Go  beyond 
our  own  borders,  to  countries  where  the  sovereign  is  an  indi 
vidual,  with  fixed  hereditary  right  to  reign,  and  where  the 
doctrine  established  is  that  which  I  repudiate,  "Once  a  sove 
reign,  always  a  sovereign,"  and  that  the  sovereign  rules  by 
divine  right  and  cannot  innocently  be  superseded.  If  the 
doctrine  affirmed  in  this  case  be  true,  that  to  give  validity  to 
the  acts  of  a  Government  established  by  a  revolution  the  pre 
ceding  Government  must  have  recognized  its  existence,  then 
the  world  will  be  sadly  at  fault.  Show  me  where  the  King  of 
Naples  has  acknowledged  the  kingship  of  Victor  Emanuel? 
Show  me  where  the  sovereigns  of  Parma  and  Modcna  and 


OF    TFIK    SCHOONER    SAVANNAH.  227 

Tuscany  have  consented    to   the    establishment  of   the  new 
government  in  their  territory? 

But  the  people  have  voted  in  the  new  Government,  and  they 
maintain  it ;  and  Victor  Emanuel  is,  in  spite  of  King  Bornba, 
de  facto,  King  of  Naples;  and  Victor's  commissions  to  his  army 
and  navy,  and  his  letters  of  marque,  will  be  recognized  in 
every  court  in  every  enlightened  nation. 

Even  in  Italy,  the  Courts  of  Justice  would,  when  the  case 
arose  that  required  it,  enforce  the  same  regard  to  the  existing 
Government  as  if  the  former  sovereigns  had  formally  relin 
quished  their  claims  to  sovereignty.  Again,  I  say,  the  act  of 
the  people  is  entitled  to  more  weight  in  an  inquiry,  "  what  is 
the  Government  ?"  than  the  seal  and  recognition  of  the  former 
sovereign. 

As  Americans,  imbued  with  correct  opinions  upon  the  rela 
tion  of  the  governed  to  the  governing,  your  hearts  reject  the 
theory  propounded  by  this  prosecution,  and  concur  with  me. 

To  vindicate  your  opinion  you  will  find  the  defendants 
herein  "  not  guilty." 

Come  to  our  own  recent  history.  Texas  was  one  of  the 
States  of  the  Union  which  is  called  Mexico.  Texas  seceded 
from  that  Union.  She  declared  her  independence,  and  during 
a  struggle  of  arms  became  a  de  facto  Government.  Mexico 
would  not  recognize  her  independence,  and  continued  her  in 
tention  to  restore  her  to  the  old  Union.  The  United  States, 
however,  recognized  the  right  of  Texas  to  her  independence, 
and  invited  her  to  enter  into  our  Union,  and  did  incorporate 
her  in  that  Union  in  defiance  of  the  doctrine  of  Mexico,  "once 
a  sovereign,  always  a  sovereign  until  independence  shall  be 
acknowledged."  We  then  denounced  that  doctrine,  but  now 
we  seem  ready  to  embrace  its  odious  sentiments.  We  placed 
our  declaration  on  record  before  the  world,  that  Texas,  by  her 
act  alone,  unauthorized  and  unrecognized  by  the  central 
Government  of  Mexico,  had  become  a  sovereign  and  independ 
ent  State,  invested  with  full  power  to  dispose  of  her  territory 
and  the  allegiance  of  her  citizens,  and,  as  a  sovereign  State,  to 
enter  into  compacts  with  other  States. 

Have  not  the  Courts  of  the  United  States  sanctioned  that 
proceeding?  Suppose  that  Hungary,  or  Venice,  or  Ireland 
shall  separate  from  their  present  empires  and  establish  Gov 
ernments  for  themselves,  what  will  be  our  position  ?  Let  your 
verdict  in  this  case  determine. 

It  is,  perhaps,  well,  now,  to  recur  to  the  law  of  nations. 
That  is  a  part  of  the  common  law  of  England  and  of  this 
country.  We  may  claim  in  this  Court  the  benefit  of  its  en 
lightened  and  humane  provisions,  as  if  they  were  embodied  in 
our  statutes.  Ihere  are  circumstances  in  the  history  of  every 


228  TRIAL   OF   THE   OFFICERS   AND   CREW 

nation,  when  the  law  of  nations  supervenes  upon  the  statutes 
and  controls  their  literal  interpretation. 

If  the  case  becomes  one  to  which  the  law  of  nations  is 
applicable,  it  thereby  is  removed  from  the  pale  of  the  statute. 
Such  is  the  present  case.  In  the  seceded  States  a  Government 
has  been  established.  It  has  been  hitherto  maintained  by 
force,  it  is  true,  as  against  the  United  States,  but  by  consent  of 
the  people  at  home  ;  and  both  sides  have  taken  up  arms,  and 
large  armies  now  stand  arrayed  against  each  other,  in  support 
of  their  respective  Governments.  It  is  all-important  to  the 
cause  of  justice,  and  to  the  honor  of  the  United  States,  to  see 
that  in  their  official  acts,  in  their  treatment  of  prisoners,  either 
of  the  army  or  captured  privateers,  they  conform  to  the  rules 
recognized  as  binding,  under  similar  circumstances,  by  civil 
ized  and  Christian  nations,  and  sanctioned  by  the  authoritative 
publicists  of  the  world.  I  will  recall  your  attention  to  extracts 
from  Yattel,  and  with  the  firmest  confidence  that  they  will 
vindicate  my  views,  that  the  defendants  are  entitled  to  be  held 
as  prisoners  of  war,  and  not  as  criminals  awaiting  trial : 

Vattel,  Book  III.,  chapter  18,  sec.  292  : 

"  When  a  party  is  formed  in  a  State,  which  no  longer  obeys  the  sovereign, 
and  is  of  strength  sufficient  to  make  a  head  against  him,  or  when,  in  a  Repub 
lic,  the  nation  is  divided  into  two  opposite  factions,  and  both  sides  take  arms, 
this  is  called  a  civil  war.  Some  confine  this  term  only  to  a  just  insurrection 
of  subjects  against  an  unjust  sovereign,  to  distinguish  this  lawful  resistance 
from  rebellion,  which  is  an  open  and  unjust  resistance  ;  but  what  appellation 
will  they  give  to  a  war  in  a  Republic  torn  by  two  factions,  or,  in  a  Monarchy, 
between  two  competitors  for  a  crown  V  Use  appropriates  the  term  of  civil 
war  to  every  war  between  the  members  of  one  and  the  same  political 
society." 

Subsequent  clause  in  same  section  : 

41  Therefore,  whenever  a  numerous  party  thinks  it  has  a  right  to  resist  the 
sovereign,  and  finds  itself  able  to  declare  that  opinion,  sword  in  hand,  the 
war  is  to  be  carried  on  between  them  in  the  same  manner  as  between  two 
different  nations  ;  and  they  are  to  leave  open  the  same  means  for  preventing 
enormous  violences  and  restoring  peace." 

Last  clause  in  section  295  : 

"  But  when  a  nation  becomes  divided  into  two  parties  absolutely  independ 
ent  and  no  longer  acknowledging  a  common  superior,  the  State  is  dissolved, 
and  the  war  betwixt  the  two  parties,  in  every  respect,  is  the  sunn;  with  that 
in  a  public  war  between  two  different  nations.  Whether  a  Republic  be  torn 
into  two  factious  parties,  each  pretending  to  form  the  body  of  the  State,  or  a 
Kingdom  be  divided  betwixt  two  competitors  to  the  Crown,  the  nation  is 
thus  severed  into  two  parties,  who  will  mutually  term  each  other  rebels. 
Thus  there  are  two  bodies  pretending  to  be  absolutely  independent,  and  who 
having  no  judge,  they  decide  the  quarrel  by  arms,  like  two  different  nations. 
The  obligation  of  observing  the  common  laws  is  therefore  absolute,  indispens- 


OF    THE    SrilOONKi:    SAVANNAH.  229 

able  to  both  parties,    and  the  same  which  the  law  of   nature    obliges    all 
nations  to  observe  between  State  and  State." 

"  If  it  be  between  part  of  the  citizens,  on  one  side,  and  the  sovereign,  with 
those  who  continue  in  obedience  to  him,  on  the  other,  it  is  sufficient  that  the 
malcontents  have  some  reasons  for  taking  arms,  to  give  this  disturbance  the 
name  of  civil  war,  and  not  that  of  rebellion.  This  last  term  is  applied  only 
to  such  an  insurrection  against  lawful  authority  as  is  void  of  all  appearance 
of  justice.  The  sovereign,  indeed,  never  fails  to  term  all  subjects  rebels  open 
ly  resisting  him  ;  but  when  these  become  of  strength  sufficient  to  oppose  him, 
so  that  he  finds  himself  compelled  to  make  war  regularly  on  them,  he  must 
be  contented  with  the  term  of  civil  war." 

Clause  of  section  293  : 

"  A  civil  war  breaks  the  bands  of  society  and  government,  or  at  least  it 
suspends  their  force  and  effect.  It  produces  in  the  nation  two  independent 
parties,  considering  each  other  as  enemies,  and  acknowledging  no  common 
judge.  Therefore,  of  necessity,  these  two  parties  must,  at  least  for  a  time,  be 
considered  as  forming  two  separate  bodies — two  distinct  people.  Though  one 
of  them  may  be  in  the  wrong  in  breaking  up  the  continuity  of  the  State — to 
rise  against  lawful  authority — they  are  not  the  less  divided  in  fact.  Besides, 
who  shall  judge  them?  On  earth  they  have  no  common  superior.  Thus 
they  are  in  the  case  of  two  nations  who,  having  dispute  which  they  cannot 
adjust,  are  compelled  to  decide  it  by  force  of  anus." 

First  clause  in  sec.  294 : 

"  Things  being  thus  situated,  it  is  evident  that  the  common  laws  of  war, 
those  maxims  of  humanity,  moderation  and  probity  which  we  have  before 
enumerated  and  recommended,  are,  in  civil  wars,  to  be  observed  on  both 
sides.  The  same  reasons  on  which  the  obligation  between  State  and  State  is 
founded,  render  them  even  more  necessary  in  the  unhappy  circumstance 
when  two  incensed  parties  are  destroying  their  common  country.  Should 
the  sovereign  conceive  he  has  a  right  to  hang  up  his  prisoners  as  rebels,  the 
opposite  party  will  make  reprisals  ;  if  he  does  not  religiously  observe  the 
capitulations  and  all  the  conventions  made  with  his  enemies,  they  will  no 
longer  rely  on  his  word ;  should  he  burn  and  destroy,  they  will  follow  his 
example  ;  the  war  will  become  cruel  and  horrid ;  its  calamities  will  increase 
on  the  nation." 

Hemember  you  are  an  American  Jury  ;  that  your  fathers 
were  revolutionists  ;  that  they  judged  for  themselves  what  Gov 
ernment  they  would  have,  and  they  did  not  hesitate  to  break 
off  from  their  mother  Government,  even  though  there  were 
penalties  of  statutes  with  which  they  were  threatened.  And 
remember,  also,  that  from  the  beginning  of  your  fathers'  revo 
lution,  they  claimed  that  they  were  not  liable  to  the  treatment 
of  offenders  against  British  statutes,  but  that  the  Colonies  were 
a  nation,  and  entitled  to  belligerent  rights — one  of  which  was, 
that  if  any  of  their  army  or  navy  fell  into  the  hands  of  the 
British  army,  they  should  be  held  as  prisoners  of  war. 

Your  fathers  never  admitted  that  the  continental  army  were 
liable  to  punishment  with  the  halter^  if  taken  prisoners. 

To  be  sure,  the  statute  of  Great  Britain,  literally  construed, 
so  provided,  but  the  law  of  nations  had  supervened,  and  ren- 


230  TRIAL    OF  THE   OFFICERS   AND   CREW 

dered  that  statute  no  longer  applicable.  Vindicate  jour  re 
spect  for  your  fathers'  claims,  by  extending  the  same  immuni 
ties  to  the  prisoners  at  the  bar,  whose  situation  is  analogous  to 
that  of  our  fathers. 

At  the  commencement  of  the  Revolution,  preceding  the 
Declaration  of  Independence  in  1776,  the  Colonies  became 
each  a  separate  sovereignty.  That  became  the  status,  with 
some,  without  documentary  declaration  to  that  effect;  but  most 
of  them  have  left  on  record  positive  enunciations  of  their  as 
sumption  of  independence  and  sovereignty  as  States,  uncon 
nected  with  the  proceedings  of  any  other  State.*  They  entered 
into  a  Confederation  as  independent  States,  declaring,  how 
ever,  distinctly,  in  a  separate  article,  that  each  State  retained 
its  own  sovereignty,  freedom,  and  independence,  and  every 
power  of  jurisdiction  and  right  not  expressly  delegated  to  the 
United  States  in  Congress  assembled.  And  at  the  close  of  the 
war,  when  the  treaty  of  peace  was  made,  recognizing  the  in 
dependence  of  the  Colonies,  each  State  was  named  individual 
ly.  I  have  never  been  able  to  discover  when  and  where,  since 
that  period,  any  State  has  surrendered  its  sovereignty,  or  de 
prived  itself  of  its  right  to  act  as  a  sovereign.  The  Constitu 
tion  suspends  the  exercise  of  some  of  the  lunctions  of  sover 
eignty  by  the  States,  but  it  does  not  deprive  them  of  their 
power  to  maintain  their  rights  as  sovereigns,  when  and  how 
they  shall  think  best,  if  that  Constitution  shall,  in  their  judg 
ment,  be  broken  or  perverted  as  a  delegated  trust  of  power. 

Listen,  therefore,  to  the  better  voices  whispering  to  each 
heart.  Remember,  the  honor  and  consistency  of  the  United 
States  are  involved  in  this  case.  By  a  conviction  of  the  defend 
ants,  you  condemn  the  Revolution  of  your  ancestors ;  you  sus 
tain  the  theories  of  the  worst  courtiers  who  surrounded  George 
III.  in  his  war  to  put  down  the  rebellion  ;  you  will  appear  to 
the  world  as  stigmatizing  revolutionists  with  the  names  of  out 
laws  and  pirates,  which  is  the  phraseology  applied  to  them  by 
Austria  and  Russia  ;  you  will  violate  the  law  of  nations  ;  you 
will  appear  to  be  merely  wreaking  vengeance,  and  not  making 
legitimate  war ;  you  will  henceforth  preclude  your  nation  from 
offering  a  word  of  sympathy  to  people  abroad  who  may  be 
struggling  for  their  independence,  and  who  have  heretofore 
always  turned  their  hearts  to  you.  You  can  never — having 
punished  your  revolutionists  on  the  gallows — send  an  invitation 


*  An  interesting  fact,  not  published  previously,  I  believe,  has  been  commu 
nicated  to  the  public  recently  by  Mr.  Dawson,  of  New  York,  a  historical  student 
and  writer  of  great  research  and  culture.  He  has  found  an  original  minute  in 
the  records  of  the  General  Court  of  Massachusetts,  whereby,  as  early  as  May 
1st,  1776,  the  sovereignty  and  independence  of  that  Colony  was  declared  formally. 


OF   THE    SCHOONER    SAVANNAH.  231 

to  the  unfortunate  champions  of  independent  Government  in 
the  old  world.  Kossuth  will  reply:  The  American  maxim  is 
that  of  Francis  Joseph,  and  of  Marshal  Ilaynau.  You  cannot 
say  "  Godspeed  !"  to  Ireland,  if  she  shall  secede.  No  !  as  you 
love  the  honor  of  your  country,  and  her  place  among  nations, 
refuse  to  pronounce  these  men  pirates. 

Tell  your  Government  to  wage  manly,  open,  chivalric  war 
on  the  field  and  ocean,  and  thus  or  not  at  all;  that  dishonor  is 
worse  even  than  disunion.  Stain  not  your  country's  hand 
with  blood.  If  I  were  your  enemy,  I  would  wish  no  worse  for 
your  names,  than  to  record  your  verdict  against  these  prisoners. 
Leave  no  such  record  against  your  country  in  her  annals ;  and 
when  the  passions  of  the  hour  shall  have  subsided,  your  ver 
dict  of  acquittal  of  Thomas  II.  Baker  and  the  other  defendants 
herein,  will  be  recalled  by  you  with  satisfaction,  and  will  re 
ceive  the  approval  of  your  countrymen. 


AKGUMENT   OF   ME.   DAVEGA. 

May  it  please  your  Honors :  Gentlemen  of  the  Jury  : 

On  the  25th  of  June  last,  when  the  startling  intelligence 
was  announced  in  our  daily  papers  of  the  capture  of  the  so- 
called  Pirates  of  the  Savannah,  our  community  was  thrown 
into  a  furore  of  excitement.  Every  one  was  anxious  to  get  a 
glimpse  of  the  "  monsters  of  the  deep,"  as  they  were  carried 
manacled  through  our  streets.  Some  expected  to  see  in  Cap 
tain  Baker  a  u  counterfeit  presentment "  of  the  notorious 
Captain  Kidd ;  others  expected  to  trace  resemblances  in 
Harleston  and  Passalaigue  to  Hicks  and  Jackalow  :  but  what 
was  their  surprise  when  they  discovered,  instead  oi  fiends  in 
human  shape,  gentlemen  of  character,  intelligence,  refinement, 
and  education !  Captain  Baker  is  a  native  of  the  Quaker  City, 
Harleston  and  Passalaigue  of  the  State  of  South  Carolina, — all 
occupying  the  best  positions  in  society,  and  respectably  connect 
ed.  The  father  of  Harleston  was  educated  in  one  of  our  JN  orth- 
ern  universities,  and,  by  a  strange  coincidence,  one  of  his  class 
mates  was  no  less  a  person  than  the  venerable  and  distinguished 
counsel  who  now  appears  in  behalf  of  his  unfortunate  son. 
(The  counsel  directed  his  eyes  to  Mr.  Lord.)  Another  strange 
coincidence  in  the  case  is,  that  twelve  men  are  sitting  in  judg 
ment  upon  the  lives  of  twelve  men,  and  these  men  u  enemies 
of  the  country,  enemies  of  war,"  and  as  such  are  entitled  to  the 
rights  of  prisoners  of  war. 


232  TRIAL   OF   THE    OFFICERS    AJ*D    CREW 

They  do  not  belong  to  your  jurisdiction  ;  their  custody 
belongs  exclusively  to  the  military  and  not  the  civil  power. 
Instead  of  being  incarcerated  as  felons,  in  the  Tombs,  they 
should  have  been  imprisoned  in  Fort  Lafayette,  as  prisoners  of 
war.  They  are  your  enemies  to-day ;  they  were  your  friends 
yesterday.  It  is  no  uncommon  occurrence  that  when  two  men 
engage  in  a  quarrel,  ending  in  a  fierce  combat,  they  are  after 
wards  better  friends  than  they  were  before  ;  the  vanquished 
magnanimously  acknowledging  the  superiority  of  the  victor, 
and  the  victor  in  return  receiving  him  kindly.  And  so,  gen 
tlemen,  I  hope  the  day  is  not  far  distant  when  the  Stars  and 
Stripes  will  float  in  the  breeze  upon  every  house-top  and  every 
hill-top  throughout  the  length  and  breadth  of  our  glorious 
Republic :  then  shall  we  establish  the  great  principle,  for 
which  our  forefathers  laid  down  "  their  lives,  their  fortunes, 
and  their  sacred  honor,"  that  this  is  a  Government  of  consent, 
and  not  of  force  ;  and  "that  free  governments  derive  their  just 
powers  from  the  consent  of  the  governed." 

In  this  case  some  of  the  gravest  and  most  complicated 
questions  of  political  and  international  jurisprudence  are 
involved. 

The  learned  counsel  who  have  preceded  me  have  so  fully 
and  ably  argued  the  political  questions  involved,  that  it  would 
be  the  work  of  supererogation  for  me  to  go  over  them  ;  but  in 
this  connection  it  is  not  inappropriate  to  refer  to  the  fact  that 
political  opinions  instilled  into  the  minds  of  the  prisoners  may 
have  influenced  their  conduct.  They  were  indoctrinated  with 
the  principles  of  political  leaders  who  advocated  States'  Rights, 
Nullification,  and  Secession ;  and  without  undertaking  to 
justify  or  approve  the  soundness  or  correctness  of  their  views, 
it  is  enough  for  me  to  show  that  the  prisoners  at  the  bar  were 
actuated  by  these  principles.  The  name  of  John  C.  Calhoun 
was  once  dear  to  every  American ;  his  fame  is  now  sectional. 
Every  Southerner  believes  implicitly  in  his  doctrines ;  his  very 
name  causes  their  bosoms  to  swell  with  emotions  of  pride  ;  his 
works  are  political  text  books  in  the  schools.  It  has  been 
facetiously  said  that  when  Mr.  Calhoun  took  a  pinch  of  snuft", 
the  whole  State  of  South  Carolina  sneezed.  I  do  not  mean  to 
treat  this  case  with  levity,  but  merely  intend  to  show  the  sym 
pathy  that  existed  between  Mr.  Calhoun  and  his  constituents. 
Then  what  is  the  "  head  and  front  of  their  offending  "  f  They 
conscientiously  believed  that  allegiance  was  due  to  their  State, 
and  she  in  return  owed  them  protection ;  and  under  such  con 
victions  enlisted  in  her  behalf.  If  they  have  erred,  it  was  from 
mistaken  or  false  notions  of  patriotism,  and  not  from  criminal 
ity.  It  is  the  intent  that  constitutes  the  crime.  And  this  is 
the  only  just  rule  that  should  obtain  in  human  as  well  as  divine 
tribunals. 


OF   THK    SCHOONER    SAVANNAH.  233 

The  prisoners  at  the  bar  stand  charged  with  the  offence  of 
piracy.  I  contend  that  they  do  not  come  within  the  intention 
and  purview  of  the  statute  against  piracy.  To  understand  and 
properly  interpret  a  law,  we  must  look  to  the  intention  of  the 
legislator,  and  the  motives  and  causes  which  give  rise  to  the 
enactment  of  the  law.  In  the  construction  of  a  will,  the  in 
tention  of  the  testator  is  to  be  ascertained ;  and  the  same  rules 
apply  in  the  just  interpretation  of  every  law.  These  laws 
were  enacted  at  a  period  when  peace  and  prosperity  smiled 
upon  this  country.  If  they  had  been  passed  during  Nullifica 
tion  in  1832,  when  the  disruption  of  the  Union  was  threatened, 
then  we  might  reasonably  infer  that  they  were  intended  to 
apply  to  the  existing  state  of  affairs ;  so  that  the  irresistible 
conclusion  is,  that  they  were  applicable  only  to  a  state  of  peace, 
and  not  to  a  state  of  war. 

The  question  then  arises,  Does  a  state  of  war  exist  ?  The 
learned  counsel  for  the  prosecution  (Mr.  Evarts),  in  an  able  and 
elaborate  argument  for  the  Government,  when  this  question 
arose  in  the  trial  of  prize  causes,  in  the  other  part  of  this  Court 
(when  it  was  the  interest  of  the  Government  to  assume  that 
position),  demonstrated  clearly,  to  my  mind,  that  a  state  of  war 
did  exist,  and  confirmed  his  views  by  citations  from  the  best 
authorities  on  international  law. 

Yattel,  who  ranks  among  the  first  of  authors,  and  whose  work 
on  the  law  of  nations  is  recognized  by  every  enlightened  jurist 
throughout  the  civilized  world,  defines  "war  to  be  that 'state, 
where  a  nation  prosecutes  its  rights  by  force."  That  this  is  a 
nation  no  one  will  doubt ;  that  it  is  prosecuting  its  rights  can 
not  be  denied  ;  and  no  one  will  doubt  that  it  is  using  force  upon 
a  stupendous  scale — requiring  four  hundred  millions  of  dollars, 
and  500,000  men,  with  the  probability  of  additional  requisi 
tions  of  men  and  treasure  for  a  successful  termination  of  this 
fratricidal  war. 

It  may  be  said  that  this  is  a  civil  war.  Admitting  it  to  be 
so,  the  only  distinction  between  this  and  an  international  war 
is,  that  the  former  is  an  intestinal  war  between  the  people, 
where  the  Republic  is  divided  into  two  factions,  and  the  latter 
is  where  two  nations  are  opposed  to  each  other.  All  the  rules 
of  civilized  war,  therefore,  should  govern  equally,  and  it  is  to 
soften  and  mitigate  the  horrors  of  civil  war  that  an  exchange 
of  prisoners  is  recognized. 

I  have  endeavored  to  show  that  the  prisoners  at  the  bar  are 
not  guilty  of  piracy,  as  defined  by  the  Acts  of  Congress ;  and 
if  they  are  not  guilty  of  municipal  piracy,  they  are  certainly 
not  guilty  of  piracy  by  the  law  of  nations.  What  is  a  pirate  ? 
He  is  defined  to  be  an  enemy  of  the  human  race — a  common 
sea  rover,  without  any  fixed  place  of  residence,  who  acknowl- 


234  TRIAL   OF   THE   OFFICERS   AND   CREW 

edges  no  sovereign,  no  law,  and  supports  himself  by  pillage 
and  depredation.  Do  the  prisoners  come  within  the  meaning 
of  this  definition?  Did  they  not  encounter  a  British  vessel 
upon  the  high  seas?  Could  they  not  have  captured  her?  But, 
no,  gentlemen  of  the  Jury,  as  soon  as  they  ascertained  that  she 
belonged  to  a  nation  in  amity  with  theirs,  they  allowed  her  to 
depart  in  peace.  With  the  permission  of  the  Court,  I  would 
beg  leave  to  refer  to  an  authority  entitled  to  high  respect — the 
works  of  SirLeoline  Jenkins,  4th  Institutes,  p.  154,  where  this 
principle  is  laid  down  :  "  If  the  subjects  of  different  States  com 
mit  robbery  upon  each  other  upon  the  high  seas,  if  their  respect 
ive  States  be  in  amity,  it  is  piracy  ;  if  at  enmity,  it  is  not,  for  it  is 
a  general  rule  that  enemies  never  can  commit  piracy  on  eacli 
other,  their  depredations  being  deemed  mere  acts  of  hostility." 

The  prisoners  were  acting  in  good  faith,  by  virtue  of  a 
commission  under  the  seal  of  the  Confederate  States.  It 
is  said,  by  the  learned  counsel  for  the  prosecution,  that  the 
prisoners  were  acting  under  the  authority  of  a  person  named 
Jefferson  Davis.  This  does  so  appear  nominally,  but  it  is  vir* 
tually  and  actually  a  commission  issuing  from  eight  millions 
of  people,  who  recognize  and  sanction  it  under  the  hand  of 
their  President  and  the  seal  of  their  Government — each  one 
being particeps  criminis,  and  each  one  being  amenable  to  the 
laws  of  the  country,  and  liable  to  the  penalties  of  treason  and 
piracy,  if  evenhanded  justice  is  to  be  meted  out. 

I  have  not  yet  been  able  to  perceive  the  distinction  between 
this  offence  as  committed  upon  sea  or  land,  except  that  it  is  at 
tended  with  more  danger.  Why,  then,  have  not  the  prisoners 
captured  by  our  armies,  who  are  now  in  Fortress  Monroe  and 
Fort  Lafayette,  been  brought  to  the  bar  of  justice?  Because 
the  Government  has  come  to  the  conclusion  that  it  would  be 
unwise,  impolitic,  and  impracticable;  our  tribunals  would  be 
inadequate  in  the  administration  of  the  laws.  But  justice  should 
be  equal. 

One  of  the  learned  Judges  who  charged  the  Jury  in  the 
case  of  the  privateers  who  were  tried  in  Philadelphia,  has  un 
dertaken  to  establish  the  doctrine  that  rebellion  is  wrong,  and 
that  it  is  only  justifiable  when  it  acquires  the  form  of  a  success 
ful  revolution.  To  analyze  this  doctrine,  it  means  no  more  nor 
less  than  this  :  that  that  which  was  originally  wrong,  success 
makes  right.  To  carry  out  the  metaphor,  a  certain  insect  in  its 
chrysalis  state  is  the  loathsome  and  detestable  caterpillar,  but 
when  it  assumes  the  form  and  variegated  hues  of  the  butterfly, 
it  is  glorious  and  beautiful  to  behold.  With  equal  force  of  rea 
son  it  might  be  said,  that  if  the  Father  of  his  country  had  been 
unsuccessful  in  consummating  our  independence,  his  name,  in 
stead  of  going  down  to  posterity  in  glory  and  honor,  would 


OF  THE   SCHOONER   SAVANNAH.  235 

have  descended  in  infamy  and  disgrace  to  all  succeeding  gen 
erations.  Such  noiions  are  unworthy  of  refined  and  enlight 
ened  civilization. 

It  was  intimated  by  the  learned  District  Attorney,  in  his 
opening  remarks,  that  in  the  event  of  a  conviction,  the  Presi 
dent  wunld  cxerc'se  the  pardoning  prerogative.  Gentlemen, 
this  is  a  delusion.  I  do  not  mean  to  insinuate  tliat  the  learned 
counsel  would  willfully  mislead  you;  for  I  am  bound  to  admit, 
in  all  becoming  candor,  that  the  prosecution  have  acted  with 
fairness  and  magnanimity  highly  creditable,  and  not  in  any 
manner  inconsistent  with  ^^performance  of  their  arduous  and 
responsible  duties;  but  I  do  s^y  that  it  should  not  have  the 
slighte-t  weight  in  your  deliberations  upon  the  important  ques 
tions  involved  in  this  case.  Is  this  a  mere  form — a  farce?  is 
your  time,  and  the  valuable  time  of  the  Court,  to  be  consumed 
in  the  investigation  of  a  long  and  tedious  case  like  the  present 
as  a  mere  pastime?  It  is  a  reflection  upon  the  good  sense  and 
intelligence  of  a  Jury,  for  the  Executive  to  exercise  the  par 
doning  power,  except  in  special  cases,  where  new  evidence  is 
discovered  after  conviction  which  may  go  to  establish  the  in 
nocence  of  the  party  so  convicted. 

Gentlemen  of  the  Jury,  you  have  a  duty  to  perform  that  re 
quires  almost  superhuman  nerve  and  moral  courage — requiring 
more  prowess  than  to  face  the  cannon's  mouth.  You  have  it 
in  your  power  to  prove  to  the  nation,  and  to  the  whole  civilized 
world,  that  in  the  administration  of  the  criminal  laws  of  the 
country,  in  a  case  involving  the  rights  and  interests  of  this 
Republic,  before  a  Jury  of  New  York  citizens,  that  "justice 
can  triumph  over  passion,  and  reason  prevail  over  prejudice" 
If  there  is  no  other  feeling  which  can  influence  your  judgment, 
if  you  have  no  sympathy  in  common  with  these  men,  there  is 
a  sympathy  yon  should  have — a  sympathy  for  those  brave  and 
valiant  spirits  who  fought  so  nobly  for  the  Union,  the  Consti 
tution,  and  the  enforcement  of  the'laws,  and  who  are  now  pris 
oners  of  war  in  the  power  of  the  enemy  ;  and  it  would  be  ex 
pecting  too  much  clemency  from  the  hands  of  the  enemy  to 
suppose  that  they  would  allow  the  sacrifice  of  these  men  to  go 
unavenged. 

I  repeat,  you  have  a  solemn  duty  to  perform,  and  public 
opinion  should  not  have  the  slightest  influence  upon  your  mind. 
You  are  to  be  governed  by  a  u  higher  law  ;"  a  law  based  upon 
the  sacred  precepts  of  Holy  Writ — its  teachings  emanating  from 
God  himself;  and  therein  you  are  commanded  to  observe  that 
golden  rule,  "  Do  unto  others  as  you  would  that  they  should 
do  unto  you." 


TRIAL    OF   THE   OFFICERS    AND   GREW 


ARGUMENT  OF  JAMES  T.  BRADY,  ESQ. 

Mr.  Brady  inquired  of  Mr.  Evarts  for  what  purpose  he 
intended  to  refer  to  the  statute  against  treason. 

Mr.  Evarts :  Not  in  any  other  light  than  I  have  already 
referred  to  the  doctrine  of  treason,  to  wit,  that  a  party  cannot 
be  shielded  from  indictment  for  the  crime  of  piracy  by  show 
ing  a  warrant  or  assumed  authority  for  acts  which  made  out 
that  his  crime  was  treason ;  that  showing  a  treasonable  combi 
nation  did  not  make  out  a  warrant  or  authority  for  that  which 
was  piracy  or  murder. 

Mr.  Brady  then  proceeded  to  address  the  Jury  on  behalf 
of  the  accused : 

May  it  please  the  Court :   Gentlemen  of  the  Jury  : 

I  feel  quite  certain  that  all  of  you  are  much  satisfied  to  find 
that  this  important  trial  is  rapidly  drawing  to  a  close ;  and  1  think 
it  would  be  unbecoming  in  me,  as  one  of  the  counsel  for  the 
accused,  to  proceed  a  step  farther  in  my  address  to  you  without 
acknowledging  to  the  Court  the  gratitude  which  we  feel  for  their 
kindness  in  hearing  so  largely  discussed  the  grave  legal  questions 
involved  in  this  controversy ;  to  the  Jury,  for  their  unvarying 
patience  throughout  the  investigation  ;  and  to  our  learned  oppo 
nents,  for  the  frank  and  open  manner  in  which  the  prosecution 
has  been  conducted.  Our  fellow-citizens  at  the  South — cer 
tainly  that  portion  of  them  who  cherish  affection  for  this  part 
of  the  Union — will  find  in  the  course  of  this  trial  most  satisfac 
tory  evidence  that  respect  for  law,  freedom  of  speech,  freedom 
of  discussion,  liberty  of  opinion,  and  the  rights  of  all  our 
countrymen,  here  exist  to  the  fullest  extent.  All  of  us  have 
heretofore  been  connected  with  interesting  and  exciting  trials. 
I  am  warranted  in  saying  that,  considering  the  period  at  which 
this  trial  has  occured,  and  all  the  facts  and  circumstances 
attending  it,  the  citizens  of  New  York  have  reason  to  be  proud 
that  such  a  trial  could  proceed  without  one  word  of  acerbity, 
without  one  expression  of  angry  feeling,  or  one  improper  exhi 
bition  of  popular  sentiment.  At  the  same  time,  as  an  American 
citizen,  loyal  to  the  Union, — one  who  has  never  recognized  as 
his  country  any  other  than  the  United  States  of  America ;  who 
has  known  and  loved  his  country  by  that  name,  and  will  so 
continue  to  know  and  love  it  to  the  end  of  his  existence, — I 
deeply  regret  that,  for  any  purpose  of  public  policy,  it  has  been 
deemed  judicious  to  try  any  of  these  u piratical"  cases,  as  they 


OF   T1IE    SCHOONER    SAVANNAH.  237 

are  denominated,  at  this  particular  juncture.  I  am  not  to 
assume  that  good  reasons  for  such  a  proceeding  have  not  in 
some  quarters  been  supposed  to  exist;  and  I  certainly  have  no 
right  to  complain  of  the  officers  of  the  law,  charged  with  a  high 
duty,  who  bring  to  trial,  in  the  usual  course,  persons  charged 
with  crime.  I  have  not  a  word  to  say  against  my  friend  the 
District  Attorney,  for  whom  I  feel  a  respect  I  am  happy  to 
express  ;  nor  against  his  learned  associate,  Mr.  Evarts,  for  whom 
I  have  high  regard  ;  nor  our  brother  Blatchford,  who  always 
performs  the  largest  amount  of  labor  with  the  smallest  amount 
of  ostentation.  Still  I  regret  the  occurrence  of  this  trial  at  a 
time  when  war  agitates  our  country;  for,  apart  from  all  theo 
ries  of  publicists,  all  opinions  of  lawyers,  for  you  or  me  to  say 
that  there  is  not  a  war  raging  between  two  contending  forces 
within  our  territory,  is  to  insult  the  common  sense  of  mankind. 
A  war  carried  on  for  what?  What  is  to  be  its  end,  gentlemen 
of  the  Jury  ?  This  war  to  which  you,  like  myself,  and  all  classes 
and  all  denominations  of  the  North  have  given  a  cheerful  and 
vigorous  support — pouring  out  treasure  and  blood  as  freely  as 
water — what  is  it  for?  Not  to  look  at  the  result  which  must 
come  out  of  it  is  folly ;  and  it  is  the  folly  that  pervades  the 
whole  American  people.  Suppose  it  were  now  announced  that- 
the  entire  Southern  forces  had  fled  in  precipitate  retreat  before 
our  advancing  hosts,  and  that  the  American  flag  waved  over 
every  inch  of  American  soil — what  then?  Are  we  fighting  to 
subjugate  the  South  in  the  sense  in  whicii  an  emperor  wuuld 
make  war  upon  a  rebellious  province?  Is  that  the  theory? 
Are  we  fighting  to  compel  the  seceded  States  to  remain  in  the 
Union  against  their  will?  And  do  we  suppose  such  a  thing 
practicable?  Are  we  fighting  simply  to  regain  the  property 
of  the  Federal  Government  of  which  we  have  been  despoiled 
in  the  Southern  States?  Or  are  we  fighting  with  a  covert  and 
secret  intention,  such  as  I  understand  to  have  been  suggested 
by  an  eloquent  and  popular  divine,  in  a  recent  address  to  a 
large  public  audience,  some  of  them,  like  himself,  from  the 
Bay  State,  "  that  Massachusetts  understands  very  well  what  she 
is  fighting  for"?  Is  it  to  effect  the  abolition  of  slavery  all  over 
the  territory  of  the  United  States?  I  will  do  the  Administra 
tion  the  justice  to  say  that,  so  far  as  it  has  given  the  country  any 
statement  of  its  design  in  prosecuting  the  war,  it  has  repellecl 
any  such  object  as  negro  emancipation.  Who  can  justify  the 
absurd  aspect  presented  by  us  before  the  enlightened  nations 
of  the  Old  Wurld,  when  they  find  one  commander  in  our  army 
treating  slaves  as  contraband  of  war ;  another  declaring  that 
they  belong  to  their  masters,  to  whom  he  returns  them;  and 
another  treating  them  all  as  free.  I  am  an  American,  and  feel 
the  strongest  attachment  to  my  country,  growing  out  of  affec- 


TRIAL   OF  THE   OFFICERS    AND   CREW 

tion  and  duty;  but  I  cannot  see  that  we  present  before  the 
world,  in  earring  on  this  war,  anything  like  a  distinct  and  pal 
pable  theory.  But  I  tell  you,  and  I  stand  upon  that  prophecy, 
as  embodying  all  the  little  intelligence  I  posses^,  that  if  it  be 
a  war  for  any  purposes  of  mere  subjugation — that  if  it  be  for 
the  purpose  of  establishing  a  dictatorship,  or  designedly  waged 
for  the  emancipation  of  all  the  slaves,  our  people  never  will 
sustain  it  at  the  North.  (Applause,  which  was  checked  by  the 
Court.) 

You  will  see  presently,  gentlemen,  why  I  have  deemed  it 
necessary,  at  the  very  outlet,  to  speak  thus  of  what  I  call  a 
state  of  civil  war, — a  condition  which,  if  tho  learn.-d  Judges 
on  the  bench,  in  their  charge  to  you,  shall,  as  matter  of  law, 
declare  to  have  existed,  then  this  commission,  under  which 
the  acts  charged  in  the  indictment  were  perpetrated,  forms  an 
absolute  legal  protection  to  the  accused.  Whether  such  a  war 
exists,  is  one  of  the  great  questions  with  which  the  Jury  have 
to  deal;  and  I  understand  that  the  Jury  have  to  deal  with  this 
case — that  they  are  not  mere  automata — ihat  we  have  not 
had  twelve  men  sitting  in  the  jury-box  for  several  days  as 
puppets. 

The  great  question  for  this  Jury,  absorbing  all  others,  is, 
Have  the  twelve  men  named  in  the  indictment,  or  has  either 
of  them,  committed  piracy,  and  thus  incurred  ihe  penalty  of 
death?  It  is  a  very  interesting  inquiiy,  gentlemen, — interest 
ing  in  its  historical,  national,  judicial,  and  political  aspects, — 
interesting,  too,  because  of  the  character  and  description  of  the 
accused.  We  discover  thsit  eight  of  ihem  are  foreigners,  who 
have  never  been  naturalized,  and  do  not  judicially  come  under 
the  designation  of  citizens  of  the  United  States.  Four  of  them 
are  what  we  call  natural-born  cit  zens — two  from  the  State  of 
South  Carolina,  one  from  North  Carolina,  and  one  from  Phila 
delphia.  Two  of  them  are  in  vary  feeble  health;  and  I  am 
sorry  to  say,  some  are  not  yet  of  middle  aue — some  quite  young, 
including  Passalaigue,  who  has  not  \et  a'taincd  his  eighteenth 
year.  I  know  my  fellow-citizens  of  New  York  quite  well  enough 
to  be  quite  sure  that  even  if  there  had  been  any  exhibition  of 
popular  prejudice,  or  feeling,  or  fury,  with  a  view  to  disturb 
their  judgments  in  the  jury-box,  the  sympathy  that  arises 
properly  in  every  well-constituted  hrart  and  mind,  in  favor  of 
the  accused,  their  relatives  and  fiends,  would  overcome  any 
any  such  wrong  impulse  as  might  be  directe  1  to  depiive  them 
of  that  fair  trial  which,  up  to  this  point,  they  have  had,  and 
which,  to  the  end,  1  know  they  will  have. 

Are  they  pirates  and  robbers?  Have  they  incurred  the 
penalty  of  death?  Gentlemen,  it  is  a  liitle  curious,  that  dur 
ing  the  present  reign  or'  Victoria,  a  statute  has  been  passed  in 


OF   THE   SCHOONER   SAVANNAH.  239 

England  softening  the  rigor  of  the  punishment  for  piracy,  and 
subjecting  the  person  found  guilty  to  transportation,  instead  of 
execution,  unless  arms  have  been  used  in  the  spoliation,  or  some 
act  done  aggravating  the  offence.  I  have  used  the  term  "  pi 
rate,"  and  the  term  "robber."  There  is  another  which, 
strangely  enough,  was  employed  by  a  Judge  of  the  Vice  Admi 
ralty  Court  in  South  Carolina,  in  1718,  who  calls  these  pirates 
and  robbers,  as  we  designate  them,  u  sea  thieves ;"  and  I  am 
very  glad  to  find  that  phrase,  because  the  words  robber  and 
pirate  have  fallen  into  mere  terms  of  opprobrium ;  while  the 
word  "  thief"  has  a  significance  and  force  understood  by  every 
man.  You  know  what  you  thought  a  "thief"  to  be,  when  a 
boy,  and  how  you  despised  him ;  and  you  are  to  look  at  each 
prisoner  mentioned  in  this  indictment,  and  say,  on  your  con 
sciences  as  men,  in  view  of  the  facts  and  of  the  law,  as 
expounded  by  the  learned  Court,  do  you  consider  that  the 
word  "thief"  can  be  applied  to  any  one  of  the  men  whom  I 
have  the  honor  to  assist  in  defending?  That  is  the  great  prac 
tical  question  which  you  are  to  decide. 

[Here  Mr.  Brady  briefly  alluded  to  the  question  of  juris 
diction  as  already  discussed  fully  encugh,  and  made  some  ob 
servations  on  the  Hicks  case,  which  had  been  referred  to.  He 
then  continued  as  follows :] 

This  indictment  charges  two  kinds  of  offence :  Piracy,  as 
that  crime  existed  by  the  law  of  nations, — which  law  may  be 
sain  to  have  been  incorporated  into  the  jurisprudence  of  the 
United  States, — and  Piracy  under  the  ninth  section  of  t/ie  Act 
of  17UO.  Piracy  by  the  law  of  nations  is  defined  by  Wlieaton, 
the  great  American  commentator  on  international  law,  on  page 
18-t  of  his  treatise  on  that  subject.  "  Piracy?  says  that 
eminent  gentleman,  who  was  an  ornament  to  the  country  which 
gave  him  birth,  and  an  honor  to  my  profession,  "  Piracy  is 
defined  by  the  text  writers,  to  be  the  offence  of  depredating  on 
the  seas  WITHOUT  BEING  AUTHORIZED  BV  ANY  SOVEREIGN  STATE,  or 
with  commissions  from  DIFFERENT  SOVEREIGNS  at  war  with  EACH 
OTHER."  The  last  part  of  the  definition  you  need  not  trouble 
yourselves  about  as  I  only  read  it  so  as  not  to  quibble  the  text. 
I  will  read  the  passage  without  the  latter  part.  " Piracy  is 
defined  to  be  the  offence  of  depredating  on  the  seas  WITHOUT  BE 
ING  AUTHORIZED  BY  ANY  SOVEREIGN  STATE."  Other  definitions 
will  hereafter  be  suggested. 

This  leads  me  to  remark  upon  certain  judicial  proceedings 
in  Philadelphia  against  men  found  on  board  the  Southern 
privateer  "Jefferson  Davis,"  and  who  were  convicted  of  piracy 
lor  having  seized  and  ^ent  away  as  a  prize  the  "Enchantress." 
Now  my  way  of  dealing  with  juries  is  to  act  with  them  while 
in  the  jury  box  as  if  they  were  out  of  it.  I  never  imitate  that 


240  TRIAL   OF   THE    OFFICERS   AND    CREW 

bird  referred  to  by  tbe  gentleman  who  preceded  me — the 
ostrich,  which  supposes  that  when  he  conceals  his  head  his 
whole  person  is  hidden  from  view.  I  know,  and  every  gen 
tleman  present  knows,  that  a  jury  in  the  city  of  Philadelphia  has 
convicted  the  men  arrested  on  the  "Jefferson  Davis,"  of  piracy. 
We  are  a  nation  certainly  distinguished  for  three  things — for 
newspapers,  politics,  and  tobacco.  I  do  not  know  that  the 
Americans  could  present  their  social  individualities  by  any 
better  signs.  Everybody  reads  the  papers,  and  everybody  has 
a  paper  given  him  to  read.  The  hackman  waiting  for  his  fare 
consumes  his  leisure  time  perusing  the  paper.  The  apple- 
woman  at  her  stall  reads  the  paper.  At  the  breakfast  table, 
the  dinner  table,  and  the  supper  table,  the  paper  is  daily  read. 
I  sometimes  take  my  meals  at  Delmonico's,  and  have  there 
observed  a  gentleman  who,  while  refreshing  himself  with  a 
hasty  meal,  takes  up  the  newspaper,  places  it  against  the  castor, 
and  eats,  drinks  and  reads  all  at  the  same  time.  Gentlemen, 
I  say  that  a  people  so  addicted  to  newspapers  must  have  ascer 
tained  that  the  men  in  Philadelphia  were  convicted ;  and  how 
the  jury  could  have  done  otherwise  upon  the  charge  of  Justices 
Grier  and  Cadwalader  I  am  incapable  of  perceiving.  1  have 
the  pleasure  of  knowing  both  those  eminent  Judges.  My  ac 
quaintance  with  Judge  Cadwalader  is  slight,  it  is  true,  but  of 
sufficient  standing  to  ensure  him  the  greatest  respect  for  his 
learning  and  character.  With  Judge  Grier  the  acquaintance 
is  of  longer  duration ;  and  as  he  has  always  extended  to  me 
in  professional  occupations  before  him  courtesies  which  men 
never  forget,  I  cannot  but  speak  of  him  with  affection.  I 
have  nevertheless  something  to  say  about  the  law  laid  down 
by  those  Judges  on  that  case.  No  question  on  the  merits  was 
left  to  the  jury,  as  I  understand  the  instructions.  The  jurymen 
were  told  that  {fthey  believed  the  testimony,  then  the  defendants 
were  guilty  of  piracy.  Now,  as  to  the  aspect  of  this  case  in 
view  of  piracy  by  the  law  of  nations,  the  question  for  the 
jury  is,  in  the  first  place,  Did  these  defendants,  in  the  act  of 
capturing  the  " Joseph"  take  her  l)y  force,  or  l)y  putting  the 
captain  of  her  in  fear,  WITH  THE  INTENT  TO  STEAL  HER  ?  That  is 
the  question  as  presented  by  the  indictment,  and  in  order  to 
convict  under  either  of  the  first  five  counts,  the  jury  must  be 
satisfied,  beyond  all  reasonable  doubt,  that  in  attacking  tJie 
"  Joseph"  the  defendants  were  actuated  as  described  in  the  in 
dictment,  from  which  I  read  the  allegation  that  they,  "with 
force  and  arms,  piratically,  feloniously,  and  violently,  put  the 
persons  on  board  in  personal  fear  and  danger  of  their  lives, 
and  in  seizing  the  vessel  did,  as  aforesaid,  seize,  ROB,  &TKAL  and 
carry  her  away."  In  this  the  indictment  follows  the  law.  Another 
question  of  fact,  in  the  other  aspect  of  the  case,  under  the  ninth 


OF   THE    SCHOONER    SAVANNAH.  241 

section  of  the  act  of  1790,  will  be,  substantially,  whether  the 
existence  of  a  civil  war  is  shown.  That  involves  inquiry  into 
the  existence  of  the  Confederate  States  as  a  de  facto  Govern 
ment  or  as  a  de  jure  Government. 

The  animus  furandi,  so  often  mentioned  in  this  case,  means 
nothing  but  the  intent  to  steal.  The  existence  of  that  intent 
must  be  found  in  the  evidence,  before  these  men  can  be  called 
pirates,  robbers,  or  thieves;  and  whether  such  intent  did  or  did 
not  exist,  is  a  question  entirely  for  you. 

To  convict  under  the  ninth  section  of  the  Act  of  1790,  the 
prosecution  must  prove  that  the  defendants,  being  at  the  time 
of  such  offence  citizens  of  the  United  States  of  America,  did 
something  which  by  that  Act  is  prohibited.  You  will  bear  in 
mind  that  the  Act  of  1790,  in  its  ninth  section,  has  no  relation 
except  to  American-born  citizens,  and  as  to  that  part  of  the 
indictment  the  eight  foreigners  charged  are  entirely  relieved 
from  responsibility. 

Well,  on  page  104,  5  Wheaton,  in  the  case  of  The  United 
States  vs.  Smith,  the  Jury  found  a  special  verdict,  which  I  will 
read  to  illustrate  what  is  piracy  and  what  is  not  piracy. 

[Here  Mr.  Brady  commented  on  the  case  referred  to,  say 
ing,  amongst  other  things, — ] 

According  to  the  evidence  in  the  case  of  Smith,  the  de 
fendants  were  clearly  pirates.  They  had  no  commission  from 
any  Government  or  Governor,  and  were  mere  mutineers,  who 
had  seized  a  vessel  illegally,  and  then  proceeded  to  seize  others 
without  any  pretence  or  show  of  authority,  but  with  felonious 
intent.  For  these  acts  they  were  justly  convicted. 

Now,  we  say,  that  this  felonious  intent  as  charged  against 
these  defendants,  must  be  proved.  But  what  say  my  learned 
friends  opposed  ?  Why  (in  effect),  that  it  need  not  be  proved 
to  a  Jury  by  any  evidence,  but  must  be  inferred,  as  a  matter 
of  law,  or  by  the  Jury  first,  from  the  presumption  that  every 
man  knows  the  law  ;  and  these  men,  in  this  view,  are  pirates — 
though  they  honestly  believed  that  there  was  a  valid  Govern 
ment  called  the  Confederate  States,  and  that  they  had  a  right 
to  act  under  it — because  they  ought  to  have  known  the  law  ; 
ought  to  have  known  that,  although  the  Confederate  States  had 
associated  for  the  purpose  of  forming,  yet  they  had  not  completed 
a  Government;  ought  to  have  known  that,  though  Baker  had  a 
commission  signed  by  Jefferson  Davis,  the  so-called  President 
of  the  Confederate  States,  under  which  he  was  authorized  to 
act  as  a  privateer,  yet  the  law  did  not  recognize  the  commission. 

There  is,  indeed,  a  rule  of  law,  said  to  be  essential  to  the 
existence  of  society,  that  all  men  must  be  taken  to  know  the 
16 


24:2  TRIAL    OF   THE    OFFICERS    AND    CREW 

law,  except,  I  might  add,  lawyers  and  judges,  who  seldom  agree 
upon  any  proposition  until  they  must. 

The  whole  judicial  system  is  founded  upon  the  theory  that 
judges  will  err  about  the  law,  arid  thus  we  have  the  Courts  of 
review  to  correct  judicial  mistakes  and  to  establish  permanent 
principles.  Yet  it  is  true  that  every  man  is  presumed  to  know 
the  law ;  and  the  native  of  Manilla  (one  of  the  parties  here 
charged),  Loo  Foo^  or  whatever  his  name  may  be,  who  does 
not,  probably,  understand  what  he  is  here  for,  is  presumed  to 
know  the  law  as  well  as  one  of  us.  If  he  did  not  know  it  bet 
ter,  cons'dering  the  differences  between  us,  he  might  not  be 
entitled  to  rate  high  as  a  jurist.  One  of  my  brethren  read  to 
you  an  extract  from  a  recent  German  work,  which  presents  a 
different  view  of  this  subject  as  relates  to  foreign  subjects  in 
particular  cases.  I  was  happy  to  hear  MR.  MAYER  on  the  law 
of  this  case,  more  particularly  as  he  declared  himself  to  be  a 
foreign-born  citizen  ;  for  it  is  one  of  the  characteristics  of  this 
Government — a  characteristic  of  our  free  institutions — that  no 
distinction  of  birth  or  creed  is  permitted  to  stand  in  the  way 
of  merit,  come  from  what  clime  it  may. 

There  is  another  presumption.  Every  man  is  presumed  to 
intend  the  natural  consequences  of  his  own  acts.  Now,  what 
are  the  natural  consequences  of  the  acts  done  by  these  defend 
ants?  The  law  on  this  point  is  illustrated  and  applied  with 
much  effect  in  homicide  cases.  Suppose  a  man  has  a  slight 
contention  with  another,  and  one  of  the  combatants,  drawing 
a  dagger,  aims  to  inflict  a  slight  wound,  say  upon  the  hand  of 
the  other ;  but,  in  the  struggle,  the  weapon  enters  the  heart, 
and  the  injured  party  dies.  The  man  is  arrested  with  the 
bloody  dagger  in  his  hand,  the  weapon  by  which  death  was 
unquestionably  occasioned  ;  and  the  fact  being  established  that 
he  killed  the  deceased,  the  law  will  presume  the  act  to  be 
murder,  and  cast  upon  the  accused  the  burthen  of  showing 
that  it  was  something  other  than  murder.  I  hope,  gentlemen, 
to  see  the  day  when  this  doctrine  of  law  will  no  longer  exist. 
I  never  could  understand  how  the  presumption  of  murder 
could  be  drawn  from  an  act  equally  consistent  with  murder, 
manslaughter,  justifiable  or  excusable  homicide,  or  accident, 
but  such  is  the  law,  and  it  must;  be  respected. 

I  say,  that  neither  of  the  defendants  intended,  as  the  ordi 
nary  and  natural  consequence  of  his  act,  to  commit  piracy  or 
robbery,  though  what  he  did  might,  in  law,  amount  to  such  an 
offence.  He  intended  to  take  legal  prizes,  and  no  more  to  rob 
than  the  man  in  the  case  I  supposed  designed  to  kill. 

The  natural  consequences  or  his  acts  were,  to  take  the  ves 
sel  and  send  her  to  a  port  to  be  adjudicated  upon  as  a  prize. 
Now,  I  state  to  iny  learned  friends  and  the  Court  this  proposi- 


OF  THE   SCHOONER   SAVANNAH.  243 

tion — that  though  a  legal  presumption  as  to  intent  might  have 
existed  in  this  case  if  the  prosecution  had  proved  merely  the 
forcible  taking,  yet  if,  in  making  out  a  case  for  the  Government, 
any  fact  be  elicited  which  shows  that  the  actual  intent  was  dif 
ferent  from  what  the  law  in  the  absence  of  such  fact  would 
imply,  the  presumption  is  gone.  And  when  the  prosecution 
made  their  witness  detail  a  conversation  which  took  place  be 
tween  Captain  Baker  and  the  Captain  of  the  Joseph,  with  refer 
ence  to  the  authority  of  the  former  to  seize  the  vessel,  and 
when  you  find  tliat  Captain  Baker  asserted  a  claim  of  right, 
that  overcomes  the  presumption  that  he  despoiled  the  Captain 
of  the  Joseph  with  an  intent  to  steal.  The  animus  furandi 
must,  in  this  case,  depend  on  something  else  than  presumption. 
I  will  refer  you  for  more  particulars  of  tlie  law  on  this  point,  to 
1  Greenleaf  on  Evidence,  sections  13  and  14,  and  I  make  this 
citation  for  another  purpose.  When  an  act  is  in  itself  illegal, 
sometimes,  if  not  in  the  majority  of  cases,  the  law  affixes  to  the 
party  the  intent  to  perpetrate  a  legal  offence.  But  this  is  not 
the  universal  rule.  In  cases  of  procuring  money  or  goods  un 
der  false  pretences,  where  the  intent  is  the  essence  of  the  crime, 
the  prosecution  must  establish  the  offence,  not  by  proving 
alone  the  act  of  receiving,  but  by  showing  the  act  and  intent ; 
so  both  must  be  proved  here.  Now,  I  ask,  h.-s  the  prosecution 
entitled  itself  to  the  benefit  of  any  presumption  as  to  intent  ? 
What  are  the  facts — the  conceded  facts  f  Baker,  and  a  number 
of  persons  in  Charleston,  did  openly  and  notoriously  select  a 
vessel  called  the  "  Savannah,"  ihen  lying  in  the  stream,  and 
fitted  her  out  as  a  privateer.  Baker,  in  all  of  these  proceed 
ings,  acted  under  the  authority  of  a  commission  signed  by  Jef 
ferson  Davis,  styling  and  signing  himself  President  of  the  Con 
federate  States  <»f  America.  Baker  and  his  companions  then 
went  forth  as  privateersmen,  and  in  no  other  capacity,  for  the 
purpose  of  despoiling  the  commerce  of  the  UniU  d  States,  and 
with  the  strictest  injunction  not  to  meddle  with  the  property  of 
any  other  country.  The  instructions  were  clear  and  distinct  on 
this  head,  as  you  know  from  having  heard  them  read.  They 
went  to  sea,  and  overhauled  the  Joseph ;  gave  chase  with  the 
American  flag  flying — one  of  the  ordinary  devices  or  cheats 
practiced  in  naval  warfare;  a  device  frequently  adopted  by 
American  naval  commanders  to  whose  fame  no  American  dare 
affix  the  stightest  stigma.  On  nearing  the  Joseph,  the  Savan 
nah  showed  the  secession  fl  ig,  and  Baker  requested  Captain 
Meyer  to  come  on  board  with  his  papers.  The  Captain  asked 
by  what  authority,  and  received  for  answer:  "The  authority 
of  the  Confederate  States."  The  Captain  then  went  on  board 
with  his  papers,  when  Baker,  helping  him  over  the  side,  said : 
*'  I  am  very  sorry  to  take  your  vessel,  but  I  do  so  in  retaliation 


244  TRIAL   OF   THE   OFFICERS    AND    CREW 

against  the  United  States,  with  whom  we  are  at  war."  Baker 
put  a  prize  crew  on  board  the  Joseph,  and  sent  her  to  George 
town  ;  the  Captain  he  detained  there  as  a  prisoner.  She  was 
then  duly  submitted  for  judgment  as  a  prize.  These  are  the 
facts  upon  which  they  claim  that  piracy  at  common  law  is  es 
tablished. 

My  learned  associate,  Mr.  Larocque,  cited  a  number  of 
eases  to  show  that  though  a  man  might  take  property  of  an 
other,  and  appropriate  it  to  his  own  use,  yet  if  he  did  so  under 
color  of  right,  under  a  bonafide  impression  that  he  had  author 
ity  to  take  the  property,  he  would  only  be  a  trespasser;  he 
would  have  to  restore  it  or  pay  the  value  of  it,  but  he  could 
not  be  convicted  of  a  crime  for  its  conversion. 

Let  me  state  a  case.  You  own  a  number  of  bees.  They 
leave  your  land,  where  they  hived,  and  come  upon  mine,  and 
take  refuse  in  the  hollow  of  a  tree,  where  they  deposit  their 
honey.  They  are  your  bees,  but  you  cannot  come  upon  my 
land  to  take  them  away  ;  and  though  they  are  in  my  tree,  I  can 
not  take  the  honey.  Such  a  case  is  reported  in  our  State  adju 
dications.  But,  suppose  that  I  did  take  the  bees  and  appropri 
ate  the  honey  to  my  own  use:  I  might  be  unjustly  indicted 
for  larceny,  because  I  took  the  property  of  another,  but  1  am 
not,  consequently,  a  thief  in  the  eye  of  the  law ;  the  absence  of 
intent  to  steal  would  ensure  my  acquittal. 

That  is  one  illustration.  1  will  mention  one  other,  decided 
in  the  South,  relating  to  a  subject  on  which  the  South  is  very 
strict  and  very  jealois.  A  slave  announced  to  a  man  his  in 
tention  to  escape.  The  man  secreted  the  slave  for  the  purpose 
of  aiding  his  escape  and  effecting  his  freedom.  He  was  in 
dicted  for  larceny,  on  the  ground  that  he  exercised  a  control 
over  the  property  of  the  owner  against  his  will.  The  Court 
held  that  the  object  was  not  to  steal,  and  he  could  not  be  con 
victed.  In  Wheaton's  Criminal  Proceedings,  page  397,  this 
language  will  be  found,  and  it  is  satisfactory  on  the  point  un 
der  discussion. 

"There  are  cases  where  taking  is  no  more  than  a  trespass :  Where  a  man 
takes  another's  goods  openly  before  him,  or  where,  having  otherwise  than  by 
apparent  robbery,  possessed  himself  of  them,  he  avows  the  fact  before  he  is 
questioned.  This  is  only  a  trespass." 

Now  all  these  principles  are  familiar  and  simple,  and  do  not 
require  lawyers  to  expound  them,  for  they  appeal  to  the  prac 
tical  sense  of  mankind.  It  is  certainly  a  most  lamentable  re 
sult  of  the  wisdom  of  centuries,  to  place  twelve  men  together 
and  ask  them,  from  FICTIONS  or  THEORIES  to  say,  on  oath,  that  a 
man  is  a  thief,  when  every  one  of  them  KNOWS  THAT  HE  is  NOT. 
If  any  man  on  this  -Jury  thinks  the  word  pirate,  robber  or  thief 
can  be  truly  applied  to  either  of  these  defendants,  I  am  very 


OF   THE    SCHOONER   SAVANNAH.  245 

sorry,  for  I  think  neither  of  them  at  all  liable  to  any  such 
epithet. 

But,  suppose  that  the  intent  is  to  be  inferred  from  the  act  of 
seizing  the  Joseph,  and  the  defendants  must  be  convicted, 
unless  justified  by  the  commission  issued  for  Captain  Baker  ; 
let  us  then  inquire  as  to  the  effect  of  that  commission.  We 
say  that  it  protects  the  defendants  against  being  treated  as 
pirates.  Whether  it  does,  or  not,  depends  upon  the  question 
whether  the  Confederate  States  have  occupied  such  a  relation 
to  the  United  States  of  America  that  they  might  adopt  the 
means  of  retaliation  or  agression  recognized  in  a  state  of 
war. 

It  is  our  right  and  duty,  as  advocates,  to  maintain  that  the 
Confederate  Government  was  so  situated;  and  to  support  the 
proposition  by  reference  to  the  political  and  judicial  history 
and  precedents  of  the  past,  stating  for  these  men  the  principles 
and-  views  which  they  and  their  neighbors  of  the  revolting 
States  insist  upon  ;  our  personal  opinions  being  in  no  wise  called 
for,  nor  important,  nor  even  proper,  to  be  stated  at  this  time 
and  in  this  place. 

If  it  can  be  shown  that  the  Confederate  States  occupy  the 
same  position  towards  the  Government  of  the  United  States 
that  the  thirteen  revolted  Colonies  did  to  Great  Britain  in  the 
war  of  the  Revolution,  then  these  men  cannot  be  convicted  of 
piracy. 

I  do  not  ask  you  to  decide  that  the  Southern  States  had 
the  right  to  leave  the  Union,  or  secede,  or  to  revolt — to  set  on 
foot  an  insurrection,  or  to  perfect  a  rebellion.  That  is  not 
the  question  here.  I  will  place  before  the  Jury  such  views 
of  law  and  of  history  as  bear  upon  the  case — endeavoring 
not  to  go  over  the  ground  occupied  by  my  associates.  I 
will  refer  you  to  a  small  book  published  here  in  1859,  entitled, 
"  The  History  of  New  York  from  the  Earliest  Time,"  a  very 
reliable  and  authentic  work.  In  this  book  I  find  a  few  facts 
to  which  I  will  call  your  attention,  one  of  which  may  be  un 
pleasant  to  some  of  our  friends  from  the  New  England  States, 
for  we  find  that  New  York,  so  far  as  her  people  were  con 
cerned — exclusive  of  the  authorities — was  in  physical  revolt 
against  the  parent  Government  long  before  our  friends  in  New 
England,  some  of  whom  often  feel  disposed  to  do  just  what  they 
please,  but  are  not  quite  willing  to  allow  others  the  same  priv 
ilege.  I  will  refer  to  it  to  show  you  what  was  the  condition  of 
things  long  before  the  4th  of  July,  1776,  and  to  show  that, 
though  we  now  hurl  our  charges  against  these  men  as  pirates, — 
who  never  killed  anybody,  never  tried  to  kill  anybody, — who 
never  stole  and  never  tried  to  steal, — yet  the  men  of  New  York 
city  who  committed,  under  the  name  of  "Liberty  Boys,"  what 


246  TKIAL   OF   THE   OFFICERS   AND   CREW 

England  thought  terrible  atrocities,  in  New  York,  were  never 
touched  by  justice — not  even  so  heavily  as  if  a  feather  from 
the  pinion  of  tlie  humming  bird  had  fallen  upon  their  heads.  I 
find  that,  about  the  year  1765,  our  people  here  began  to  grum 
ble  about  the  taxes  and  imposts  which  Great  Britain  levied 
upon  us.  And  you  know,  though  the  causes  of  the  Revolu 
tionary  war  are  set  forth  with  much  dignity  in  the  Declaration 
of  Independence,  the  contest  originated  about  taxes.  That 
was  the  great  source  of  disaffection,  directing  itself  more  par 
ticularly  to  the  matter  of  tea,  and  which  led  to  the  miscella 
neous  party  in  Boston,  at  which  there  were  no  women  present, 
however,  and  where  salt  water  was  used  in  the  decoction.  I 
find  that  the  governor  of  the  city  had  fists,  arms,  and  all  the 
means  of  aggression  at  his  command;  but  at  length,  happily  for 
us,  the  Government  sent  over  a  young  gentleman  to  rule  us 
(Lord  Monckford),  who,  when  he  did  come,  appears  to  have 
been  similar  in  habits  to  one  of  the  accused,  who  is  described 
as  being  always  idle.  The  witness  for  the  prosecution  explained 
that  separate  posts  and  duties  were  assigned  to  each  of  the 
crew  of  the  Savannah  ;  one  fellow,  he  said,  would  do  nothing. 
But  he  will  be  convicted  of  having  done  a  good  deal,  if  the  prose 
cution  prevail.  A  state  of  rebellion  all  this  time  and  afterwards 
existed  in  this  particular  part  of  the  world,  until  the  British 
came  and  made  themselves  masters  of  the  city.  In  the  course 
of  the  acts  then  committed  by  the  citizens,  and  which  the 
British  Government  called  an  insurrection,  a  tumultuous  rebel 
lion  and  revolution,  they  offered,  or  it  was  said  they  offered, 
an  indignity  to  an  equestrian  statue  of  George  III.  The  Brit 
ish  troops,  in  retaliation,  and  being  grossly  offended  at  the 
conduct  of  Pitt,  who  had  been  a  devoted  friend  of  the  Colo 
nists,  mutilated  the  statue  of  him  which  stood  on  Wall  street. 
The  remains  of  the  statue  are  still  with  us,  and  can  be  seen  at 
the  corner  of  "West  Broadway  and  Franklin  street,  where  it  is 
preserved  as  a  relic  of  the  past — a  grim  memento  of  the  per 
fect  absurdity  of  charging  millions  of  people  with  being  all 
pirates,  robbers,  thieves,  and  marauders. 

When  the  British  took  possession  of  this  city,  they  had  at 
one  time  in  custody  five  thousand  persons.  That  was  before 
any  formal  declaration  of  independence — before  the  formation 
of  a  Government  de  jure  or  de  facto— and  yet  did  they  ever 
charge  any  of  the  prisoners  with  being  robbers?  Not  at  all. 
Was  this  from  any  kindness  or  humane  spirit?  Not  at  all:  for 
they  adopted  all  means  in  their  power  to  overcome  our  ancestors. 
The  eldest  son  of  the  Earl  of  Chatham  resigned  his  commission, 
because  he  would  not  consent  to  fight  against  the  colonies. 
The  Government  did  not  hesitate  to  send  to  Germany  for 
troops.  They  could  not  get  sufficient  at  home.  The  Irish 


OK   THE   SCHOONER    SAVANNAH.  247 

would  not  aid  them  in  the  fight.  The  British  did  not  even 
hesitate  to  employ  Indians ;  and  when,  in  Parliament,  the 
Secretary  of  State  justified  himself,  saying  that  thejT  had  a  per 
fect  right  to  employ  "  all  the  means  God  and  nature"  gave 
them,  he  was  eloquently  rebuked.  Even,  with  all  this  hostility, 
such  a  thing  was  never  thought  of  as  to  condemn  men,  when 
taken  prisoners,  and  hold  them  outside  that  protection 
which,  according  to  the  law  of  nations,  should  be  extended 
to  men  under  such  circumstances,  even  though  in  revolt  against 
the  Government. 

In  October,  1774,  the  King,  in  his  Message  to  Parliament, 
said  that  a  most  daring  spirit  of  resistance  and  disobedience 
to  the  laws  existed  in  Massachusetts,  and  was  countenanced 
and  encouraged  in  others  of  his  Colonies. 

Now,  I  want  you  to  keep  your  minds  fairly  applied  to  the 
point,  on  which  the  Court  will  declare  itself,  as  to  whether  I 
am  right  in  saying,  that  the  day  when  that  Message  was  sent  to 
Parliament  the  Colonies  occupied  towards  the  old  Government 
a  position  similar  to  that  of  the  Confederate  States  in  their  hour 
of  revolt  to  the  United  States.  But  we  will  possibly  see  that 
the  Confederate  States  occupy  a  stronger  position. 

In  the  course  of  the  discussion  which  ensued  upon  the  Mes 
sage,  the  famous  Wilkes  remarked  :  "  Rebellion,  indeed,  appears 
on  the  back  of  a  flying  enemy,  but  revolution  flames  on  the 
'breastplate  of  the  victorious  warrior." 

If  an  illegal  assemblage  set  itself  up  in  opposition  to  the 
municipal  Government,  it  is  a  mere  insurrection,  though  ordi 
nary  officers  of  the  law  be  incapable  of  quelling  it,  and  the 
military  power  has  to  be  called  out.  That  is  one  thing.  But 
when  a  whole  State  places  itself  in  an  attitude  of  hostility  to 
the  other  States  of  a  Confederacy,  assumes  a  distinct  existence, 
and  has  the  power  to  maintain  independence,  though  only  fur  a 
time,  that  is  quite  a  different  affair. 

We  remember  how  beautifully  expressed  is  that  passage  of 
the  Irish  poet,  so  familiar  to  all  of  us,  and  especially  to  those 
who,  like  myself,  coming  from  Irish  ancestry,  know  eo  well 
what  is  the  name  and  history  of  rebellion : 

"  Rebellion — foul,  dishonoring  word, 
Whose  wrongful  blight  so  oft  hath  stained 
The  holiest  cause  that  tongue  or  sword 
Of  mortal  ever  lost  or  gained  ! 
How  many  a  spirit  born  to  bless 
Has  sunk  beneath  thy  withering  bane, 
Whom  but  a  day's — an  hour's  success, 
Had  wafted  to  eternal  fame  !  " 

A  remarkable  instance,  illustrating  the  sentiment  of  this 
passage,  is  found  in  the  history  of  that  brave  man,  emerging 


248 


TRIAL    OF   THE    OFFICERS    AND    CREW 


from  obscurity,  stepping  suddenly  forth  from  the  common 
ranks  of  men,  whose  name  is  so  generally  mentioned  with 
reverence  and  love,  and  who  so  lately  freed  Naples  from  the 
rule  of  the  tyrant.  This  brave  patriot  was  driven  from  his 
native  land,  after  a  heroic  struggle  in  Home.  History  has 
recorded  how  he  was  followed  in  this  exile  by  a  devoted 
wife,  who  perished  because  she  would  not  desert  lier  husband ; 
and  how  he  came  to  this  country,  where  he  established  himself 
in  business  until  such  time  as  he  saw  a  speck  of  hope  glimmer 
on  the  horizon  over  his  lovely  and  beloved  native  land.  Then 
he  went  back  almost  alone.  Red-shirted,  like  a  common 
toiling  man,  he  gathered  round  him  a  few  trusty  followers  who 
had  unlimited  confidence  in  him  as  a  leader,  and  accomplished 
the  revolution  which  dethroned  the  son  of  Bomba,  and  placed 
Victor  Emanuel  in  his  stead.  You  already  know  that  I  speak 
of  Garibaldi.  And  yet,  Garibaldi,  it  seems,  should  have  been 
denounced  as  a  pirate,  had  the  sea  been  the  theatre  of  his 
failure ;  and  a  robber,  had  he  been  unsuccessful  upon  land ! 

What  do  you  think  an  eminent  man  said,  in  the  British  Par 
liament,  about  the  outbreak  of  our  Revolution,  and  the  condi 
tion  of  things  then  existing  in  America  ?  "  Whenever  oppres 
sion  begins,  resistance  becomes  lawful  and  right"  Who  said 
that?  The  great  associate  of  Chatham  and  Burke — Lord  Cam- 
den.  At  that  time  Franklin  was  in  Europe,  seeking  to  obtain 
a  hearing  before  a  committee  of  Parliament  in  respect  to  the 
grievances  of  the  American  people.  It  was  refused. 

The  Lords  and  Commons,  in  an  address  to  the  King,  declared 
in  express  terms,  that  a  "  REBELLION  actually  existed  in  MASSA 
CHUSETTS  ;"  and  yet,  in  view  of  all  that,  no  legal  prosecution  of 
any  rebel  ever  followed.  So  matters  continued  till  the  war  ef 
fectively  began,  Washington  having  been  appointed  Command 
er-in-chief.  Then  some  Americans  were  taKen  by  the  British 
and  detained  as  prisoners.  Of  this  Washington  complained  to 
General  Gage,  then  in  command  of  the  British  army.  Gage 
returned  answer  that  he  had  treated  the  prisoners  only  too 
kindly,  seeing  that  they  were  rebels,  and  that  "their  lives,  by 
the  law  of  the  land,  were  destined  for  the  cord."  Yet  not  one 
of  them  so  perished. 

In  view  of  these  things,  even  so  far  as  I  have  now  advanced ; 
in  view  of  the  sacrifices  of  the  Southern  Colonies  in  the  Revo 
lution  ;  in  view  of  the  great  struggle  for  independence,  and  the 
gjreat  doctrine  laid  down,  that,  whenever  oppression  begins,  re 
sistance  becomes  lawful  and  right, — is  it  possible  to  forget  the 
history  of  the  past,  and  the  great  principles  which  gleamed 
through  the  darkness  and  the  perils  of  our  early  history?  Are 
we  to  assert  that  the  Constitution  establishing  our  Government 
is  perfect  in  all  its  parts,  and  stands  upon  a  corner  stone  equiv- 


OF   THE    SCHOONER    SAVANNAH.  249 

alent  to  what  the  globe  itself  might  be  supposed  to  rest  on,  if 
we  did  not  know  it  was  ever  wheeling  through  space?  Is  all 
the  history  of  our  past,  its  triumphs  and  reverses,  and  the  glo 
rious  consummation  which  crowned  the  efforts  of  the  people, 
all  alike  to  be  thrown  aside  now,  upon  the  belief  that  we  have 
established  a  Government  so  perfect,  and  a  Union  so  complete, 
that  no  portion  of  the  States  can  ever,  under  any  circumstances, 
secede,  or  revolt,  or  dispute  the  authority  of  the  others,  without 
danger  of  being  treated  as  pirates  and  robbers  ?  The  Declara 
tion  of  Independence  has  never  been  repudiated,  I  believe,  and 
I  suppose  I  have  a  right  to  refer  to  it  as  containing  the  political 
creed  of  the  American  people.  I  do  not  know  how  many  peo 
ple  in  the  old  world  agree  with  it,  and  a  most  eminent  lawyer 
of  our  own  country  characterized  the  maxims  stated  at  its  com 
mencement  as  "  glittering  generalities."  But  I  believe  the 
American  people  have  never  withdrawn  their  approbation  from 
the  principles  and  doctrines  it  declares.  Among  those  we  find 
the  self-evident  truth,  that  man  has  an  inalienable  right  to  life, 
liberty,  and  the  pursuit  of  happiness  ;  that  it  is  to  secure  these 
rights  that  Governments  are  instituted  among  men,  deriving 
their  just  powers  from  the  consent  of  the  governed;  and  that 
whenever  any  form  of  Government  becomes  destructive  of  those 
ends,  it  is  right  and  patriotic  to  alter  and  abolish  it,  and  to  in 
stitute  a  new  Government,  laying  its  foundations  on  such  prin 
ciples,  and  conferring  power  in  such  a  form,  as  to  them  may 
seem  most  likely  to  secure  their  safety  and  happiness.  Is  this 
a  mockery?  Is  this  a  falsehood ?  Have  these  ideas  been  just 
put  forward  for  the  first  time  ?  There  has  been  a  dispute  among 
men  as  to  who  should  be  justly  denominated  the  author  of  this 
document.  The  debate  may  be  interesting  to  the  historian; 
but  these  principles,  though  they  are  embodied  in  the  Consti 
tution,  were  not  created  by  it.  They  have  lived  in  the  hearts 
of  man  since  man  first  trod  the  earth.  I  can  imagine  the  time, 
too,  when  Egypt  was  in  her  early  glory,  and  in  fancy  see  one 
of  the  poor,  miserable  wretches,  deprived  of  any  right  of  hu 
manity,  harnessed,  like  a  brute  beast,  to  the  immense  stone 
about  being  erected  in  honor  of  some  monarch,  whose  very 
name  was  destined  to  perish.  I  can  imagine  the  degraded 
slave  pausing  in  his  loathsome  toil  to  delight  over  the  idea 
that  there  might  come  a  time  when  the  meanest  of  men  would 
enjoy  natural  rights,  under  a  Government  of  the  multitude 
formed  to  secure  them. 

Now,  what  says  Blackstone  (1st  vol.,  212),  the  great  com 
mentator  on  the  law  of  England,  when  speaking  of  the  revolu 
tion  which  dethroned  James  II. :  "  Whenever  a  question  arises 
between  the  society  at  large  and  any  magistrate  originally 
vested  with  poivers  originally  delegated  by  that  society,  it  must 


250  TRIAL   OF  THE   OFFICERS   AND   CREW 

be  decided  by  the  voice  of  the  society  itself.     There  is  not  upon 
earth  any  other  tribunal  to  resort  to." 

Prior  to  the  23d  March,  1776,  the  legislature  of  Massachu- 
setts  authorized  the  issuing  of  letters  of  marque  to  privateers 
upon  the  ocean,  and  when  my  learned  friend,  Mr.  Lord,  in  his 
remarks  so  clear  and  convincing,  called  attention  to  the  law 
fulness  of  privateering,  my  brother  Evarts  attempted  to  qual 
ify  it  by  designating  the  granting  of  letters  of  marque  as 
reluctantly  tolerated,  and  as  if  no  such  practice  as  despoiling 
commerce  should  be  permitted  even  in  a  state  of  war.  I  will 
not  again  read  from  Mr.  Marctfs  letter,  but  1  will  say  here  that 
the  position  he  took  gratified  the  heart  of  the  whole  American 
people.  He  said  in  substance,  If  you,  England  and  France, 
have  the  right  to  despoil  commerce  with  armed  national  vessels 
we  have  a  right  to  adopt  such  means  of  protection  and  re 
taliation  as  we  possess.  We  do  not  propose,  if  you  make  war 
upon  us,  or  we  find  it  necessary  to  make  war  upon  you,  that 
we,  with  a  poor,  miserable  fleet,  shall  not  be  at  liberty  to  send 
out  privateers,  but  yield  to  you,  who  may  come  with  your  steel- 
clad  vessels  and  powerful  armament  to  practice  upon  us  any 
amount  of  devastation.  No.  We  never  had  a  navy  strong 
enough  to  place  us  in  such  a  position  as  that  with  regard  to 
foreign  powers.  Look  at  it.  Do  you  think  that  France  or 
England  has  any  feeling  of  friendship  towards  this  country  as  a 
nation?  I  do  not  speak  of  the  people  of  these  countries,  but 
of  the  cabinets  and  governments.  No.  Nations  are  seltisli. 
Nearly  all  the  laws  of  nations  are  founded  on  interest.  Nations 
conduct  their  political  affairs  on  that  basis.  They  never  re 
ceive  laws  from  one  another — not  even  against  crime.  And 
when  you  want  to  obtain  back  from  another  country  a  man 
who  has  committed  depredations  against  society,  you  do  it 
only  by  virtue  of  a  treaty,  and  from  no  love  or  affection  to  the 
country  demanding  it.  And  if  this  war  continues  much  longer,  I, 
for  one,  entertain  the  most  profound  apprehension  that  both  these 
powers,  France  and  England,  will  combine  to  break  the  blockade 
if  they  do  not  enter  upon  more  agressive  measures.  If  they  for 
a  moment  find  it  their  interest  to  do  so,  they  will,  and  no  power, 
moral  or  physical,  can  prevent  them.  I  say,  then,  the  right  of 
revolution  is  a  right  to  be  exercised,  not  according  to  what  the 
Government  revolted  against  may  think,  but  according  to  the 
necessities  or  the  belief  of  the  people  revolting.  If  you  be 
longed  to  a  State  which  was  in  any  way  deprived  of  its  rights, 
the  moment  that  oppression  began  resistance  became  a  duty. 
A  slave  does  not  ask  his  master  when  he  is  to  have  his  freedom, 
but  he  strikes  for  it  at  the  proper  opportunity.  A  man  threat 
ened  with  death  at  the  hands  of  another,  does  not  stop  to  ask 
whether  he  has  a  right  to  slay  his  assailant  in  self-defence.  If 


OF   THE     SCHOONER  SAVANNAH.  251 

self-preservation  is  the  first  law  of  individuals,  so  also  is  it  of 
masses  and  of  nations.   Therefore,  when  the  American  Colonies 
made  up  their  minds  to  achieve  independence,  whether  their  rea 
sons  were  sufficient  or  not,  they  did  not  consent  to  have  the  ques 
tion  decided  by  Great  Britain,  but  at  once  decided  it  for  them 
selves.     Yery  early  in  our  history,  in  1778,  France  recognized 
the  American  Government.   England,  as  you  know,  complained, 
and  the  French  Government  sent  back  an  answer  saying,  Yes, 
we  have  formed  a  treaty  with  Ibis  new  Government ;  we  have 
recognized  it,  and  you  have  no  right  to  complain  ;  for  you  re- 
remember,  England,  said  France,  that  during  ihe  reign  of  Eliza 
beth,  when  the  Netherlands  revolted  against  Spain,  you,  in  the 
first  place,  negotiated  secret  treaties  with  the  revolutionists, 
and  then  recognized  them ;  but,  when  Spain  complained  of  this, 
you  said  to  Spain — The  reasons  which  justify  the  Netherlands  in 
their  revolt  entitle  them  to  our  support.     Was  success  neces 
sary  ?    Was  the  doctrine  of  our  opponents  correct,  that,  though 
people  may  be  in  absolute  revolt  against  the  parent  Govern 
ment,  with  an  army  in  the  field,  and  in  exclusive  possession  of 
the  territories  they  occupy,  yet  they  have  no  right  to  be  recog 
nized  by  the  law  of  nations,  and  are  not  entitled  to  the  human 
ities  that  accompany  the  conditions  of  a  war  between  foreign 
powers  ?     Is  success  necessary  ?     Why  was  it  not  necessary  in 
the  case  of  the  Colonies  when  recognized  by  France  ?     Why 
not  necessary  in  the  case  of  the  Netherlands  when  recognized 
by  England  ?     Never  has  been  put  forward  such  a  doctrine  for 
adjudication  since  the  days  of  Ogden  and  Smith,  tried  in  this 
city  in  1806.     That  was  a  period  when  we  were  in  profound 
peace  with  all  the  world.     Our  new  country  was  proceeding 
on  the  march  towards  that  greatness  which  every  one  hoped 
would  be  as  perpetual  as  it  was  progressive     We  had  invited 
to  our  shores  not  only  the  oppressed  of  other  lands,  but  all  they 
could  yield  us  of  genius,  eloquence,  industry  and   wisdom. 
Among  others  who  came  to  assist  our  progress  and  adorn  our 
history  was  that  eminent  lawyer  and  patriot — that  good  and 
pure  man  whose  monument  stands  beside  St.  Paul's  Church, 
on  Broadway,  and  may  be  considered  as  pointing  its  white 
finger  to  heaven  in  appeal  against  the  severe  doctrines  under 
which  these  prisoners  are  sought  to  be  punished.     I  refer  to 
THOMAS  ADDIS  EMMETT. 

In  1806,  two  men,  Smith  and  Ogdeii,  were  put  upon  trial, 
charged  with  aiding  Miranda  and  the  people  of  Caraccas  to 
effect  a  revolt  against  the  Government  of  Spain,  which,  it  was 
said,  was  at  peace  with  the  United  States.  They  were  indicted 
under  a  statute  of  the  United  States ;  and  if  it  had  turned 
out  on  the  trial  that  the  United  States  was  certainly  in  a  con 
dition  of  peace  with  Spain,  they  might  have  been  convicted. 


252  TRIAL   OF   THE   OFFICERS   AND   CREW 

However,  that  was  a  question  of  fact  left  to  the  Jury.  The 
learned  Judges,  pure  and  able  men,  entertained  views  very 
hostile  to  the  notions  of  the  accused,  and  were  quite  as  decided 
in  those  views  as  his  honor  Judge  Grier  in  the  summary 
disposition  he  made  of  the  so-called  pirates  in  Philadelphia. 
The  trial  came  on,  and,  with  the  names  of  the  Jurors  on  that 
trial,  there  are  preserved  to  us  the  names  of  Counsel,  whose 
career  is  part  of  history.  Among  them  were  NATHAN  SAN- 
FORD,  PIERPOINT  EDWARDS,  WASHINGTON  MORTON,  CADWALLADER 
D.  GOLDEN,  JOSIAH  OGDEN  HOFFMAN,  RICHARD  HARRISON,  and 
MR.  EMMETT,  already  named.  Well,  there  was  an  effort  made  to 
disparage  any  such  enterprise  as  Miranda's,  and  any  such  aid 
thereto  as  the  accused  were  charged  with  giving.  The  Coun 
sel  endeavored  to  prove  that  the  intent  was  a  question  of  law, 
and  the  fact  had  nothing  to  do  with  it.  GOLDEN,  in  his  argu 
ment,  said,  "  Gentlemen,  all  guilt  is  rooted  in  the  mind,  and  if 
not  to  be  found  there,  does  not  exist,  and  whoever  will  contend 
against  the  proposition  MUST  FIGHT  AGAINST  HUMAN  NATURE, 

AND   SILENCE   HIS  OWN   CONSCIENCE." 

We  do  not  often  find  an  opportunity,  gentlemen,  to  regale 
ourselves  with  anything  that  emanated  from  the  mind  of  Mr. 
Emmett.  It  is  peculiar  to  the  nature  of  his  profession  that 
most  of  what  the  advocate  says  passes  away  almost  at  the 
moment  of  its  utterance.  When  Mr.  Emmett  comes  to  allude 
to  the  disfavor  sought  to  be  thrown  on  revolutionary  ideas  by 
the  eminent  counsel  for  the  prosecution,  he  says : 

"  In  particular,  I  remember,  he  termed  Miranda  a  fugitive  on  the  face  of 
the  earth,  and  characterized  the  object  of  the  expedition  as  something  auda 
cious,  novel,  and  dangerous.  It  has  often  struck  me,  gentlemen,  as  matter 
of  curious  observation,  how  speedily  new  nations,  like  new  made  nobility 
and  emperors,  acquire  the  cant  and  jargon  of  their  station. 

"  Let  me  exemplify  this  observation  by  remarking,  that  here  within 
the  United  States,  which  scarcely  thirty  years  ago  were  colonies,  engaged 
in  a  bloody  struggle,  for  the  purpose  of  shaking  off  their  dependence  on 
the  parent  State,  the  attempt  to  free  a  colony  from  the  oppressive  yoke  of 
its  mother  country  is  called  *  audacious,  novel,  and  dangerous.'  It  is  true, 
General  Miranda's  attempt  is  daring,  and,  if  you  will,  4  audacious,  but 
wherefore  is  it  novel  and  dangerous  ? 

"  Because  he,  a  private  individual,  unaided  by  the  public  succor  of  any 
state,  attempts  to  liberate  South  America.  Thrasybulus !  expeller  of  the 
thirty  tyrants !  Restorer  of  Athenian  freedom !  Wherefore  are  you  named 
with  honor  in  the  records  of  history  ? 

"  Because,  while  a  fugitive  and  an  exile,  you  collected  together  a  band 
of  brave  adventurers,  who  confided  in  your  integrity  and  talents — because, 
without  the  acknowledged  assistance  of  any  state  or  nation,  with  no  com 
mission  but  what  you  derived  from  patriotism,  liberty,  and  justice,  you 
marched  with  your  chosen  friends  and  overthrew  the  tyranny  of  Sparta 
in  the  land  that  gave  you  birth.  Nor  are  Argos  and  Thebes  censured  for 
having  afforded  you  refuge,  countenance,  and  protection.  Nor  is  Ismenias, 
then  at  the  head  of  the  Theban  government,  accused  of  having  departed 
from  the  duties  of  his  station  because  he  obeyed  the  impulse  of  benevolence 


OF   THE   SCHOONER   SAVANNAH.  253 

and  compassion  towards  an  oppressed  people,  and  gave  that  private  assistance 
which  he  could  not  publicly  avow." 

Mr.  Emmett,  remembering  the  history  of  his  own  name, 
and  the  fate  of  that  brother  who  perished  ignominiously  on 
the  scaffold  for  an  effort  to  disenthrall  his  native  land,  after 
that  outburst  of  eloquence,  indulged  in  the  following  exclam 
ation  : 

"  In  whatever  country  the  contest  may  be  carried  on,  whoever  may  be 
the  oppressor  of  the  oppressed,  may  the  Almighty  Lord  of  Hosts  strengthen 
the  right  arms  of  those  who  fight  for  the  freedom  of  their  native  land  !  May 
he  guide  them  in  their  counsels,  assist  them  in  their  difficulties,  comfort  them 
in  their  distress,  and  give  them  victory  in  their  battles  !" 

I  have  thought  proper  to  fortify  myself,  gentlemen,  by 
reference  to  this  man  of  pure  purpose,  finished  education,  and 
thorough  knowledge  of  international  law,  in  what  I  said  to 
you,  that  the  principles  which  lie  at  the  base  of  this  American 
revolution,  call  it  by  what  name  you  please,  have  been  known 
and  recognized  at  least  as  long  as  the  English  language  has 
been  spoken  on  the  earth,  and  will  be  known  forever— they 
furnishing  certain  rules,  the  benefit  of  which,  I  hope  and 
trust,  under  the  providence  of  God,  after  the  enlightened  re 
marks  of  the  Court,  and  through  your  intervention,  may  be 
extended  to  our  clients. 

Some  people  in  New  England  take  particular  offence  at  ap 
plying  these  doctrines  to  the  present  state  of  affairs.  Has 
New  England  ever  repudiated  them?  Has  the  South  ever 
maintained  with  more  unhesitating  declaration,  more  vigorous 
resolve,  more  readiness  for  the  deadly  encounter,  than  the 
North,  these  views  which  I  present  ?  Gentlemen,  when  we 
look  at  history,  we  must  take  it  as  we  find  it.  In  the  war  of 
1812,  the  New  England  States,  which  had  taken  offence  before 
at  the  embargo  of  1809,  were  found,  to  a  very  great  extent 
among  her  people,  in  an  attitude  of  direct  resistance  to  the  war; 
and  they  were  not  afraid  to  say  so.  New  England  said  so 
through  her  individual  citizens.  She  said  so  in  her  public 
associations.  She  said  so  in  the  form  of  conventions  and 
solemn  resolves.  To  one  of  these  I  will  call  attention.  I  do 
this  for  no  other  purpose  than  to  present  analogies,  principles, 
and  precedents  showing  what  rights  belong  to  those  who  op 
pose  the  Government,  or  to  a  state  of  civil  war,  or  revolution, — 
that  men  situated  like  our  clients  are  not  to  be  treated  as 
pirates  and  robbers. 

I  have  here  a  book  called  "THE  UNION  FOREVER;  THE 
SOUTHERN  REBELLION,  AND  THE  WAR  FOR  THE  UNION."  It  is  an 
excellent  compilation,  prepared  and  published  under  the  super 
intendence  of  James  I>.  Torrey,  of  this  city.  I  read  from  it : 


254  TRIAL    OF   THE    OFFICERS    AND   CREW 

"The  declaration  of  war  against  Great  Britain,  June,  1812,  brought  the 
excitement  to  its  climax.  A  peace  party  was  formed  in  New  England, 
pledged  to  offer  all  possible  resistance  to  the  war.  *  *  *  The  State  Legis 
latures  of  Massachusetts,  Connecticut,  Vermont,  &c.,  passed  laws  forbidding 
the  use  of  their  jails  by  the  United  States  for  the  confinement  of  prisoners 
committed  by  any  other  than  judicial  authority,  and  directing  the  jailors  at 
the  end  of  thirty  days  to  discharge  all  British  officers,  prisoners  of  war,  com 
mitted  to  them.  The  President,  however,  applied  to  other  States  of  the 
confederacy  for  the  use  of  their  prisons,  and  thus  the  difficulty  was,  in  a 
measure,  obviated." 

Thus  these  men  set  themselves  up  pretty  strongly  against 
the  Government.  It  is  an  act  of  which  I  do  not  approve, 
gentlemen  ;  but,  suppose  I  should  say  that  the  men  who  did 
that  were,  because  their  political  sentiments  differed  from  mine, 
fools  or  idiots,  knaves  or  traitors,  what  would  you  think  of  the 
taste  or  justice  of  such  an  observation?  It  is  the  intolerance, 
gentlemen,  which  abides  in  the  heart  of  almost  every  man, 
woman,  and  child,  and  the  diffusion  of  it  over  the  land,  that 
has  led  to  our  present  dreadful  condition.  It  is  the  endeavor 
of  one  party,  or  of  one  set,  to  set  itself  up  in  absolute  judg 
ment  over  the  opinions,  rights,  persons,  liberties  and  hearts  of 
other  men.  It  is  that  notion  which  CROMWELL  expressed  when 
he  said  (I  quote  from  memory  alone),  "I  will  interfere  with 
no  man's  liberty  of  conscience ;  but,  if  you  mean  by  that,  sol 
emnizing  a  mass,  that  shall  not  be  permitted  so  long  as  there 
is  a  Parliament  in  England."  I  have  no  doubt  that  the  men 
who  did  these  acts  in  New  England,  which  we  would  call  un 
patriotic,  were  actuated  by  conscientious  motives;  and  I  want 
to  claim  the  same  thing  for  the  men  who,  in  the  South,  are 
doing  what  is  very  offensive  to  you  and  very  offensive  to  me, 
and  the  more  offensive  because  I  honestly  and  conscientiously 
believe  that  it  is  unnecessary  and  wanton.  I  know  that  I  differ 
with  very  eminent  men  who  belonged  to  the  same  political 
organization  as  myself  when  I  make  that  remark ;  but  it  is 
the  result  of  the  best  judgment  that  I  can  form,  after  a  careful 
and  just  review  of  the  circumstances  attending  the  present 
unfortunate  breach  in  our  relation  to  each  other.  And  cer 
tainly,  gentlemen,  it  is  in  no  spirit  of  anger  that  we,  in  this 
sacred  temple  of  justice,  should  deal  with  our  erring  brethren. 
We  do  not  mean  to  pronounce,  through  the  forms  of  justice,  from 
this  jury-box,  any  anathema  or  denunciation  against  our  fellow- 
men,  merely  for  holding  erroneous  opinions.  All  the  dictates  of 
every  enlightened  religion  on  earth  are  against  any  such  con 
duct.  I  take  for  granted  that  there  is  not  one  of  you  who  has 
not  some  friend  engaged  in  the  war,  on  one  side  or  the  other. 
I  took  up  a,  newspaper  the  other  morning,  and  discovered  that 
two  men,  with  whom  I  had  been  in  the  most  intimate  relations 
of  personal  friendship,  were  in  the  same  engagement,  each 


OF   THE   SCHOONER   SAVANNAH.  255 

commanding  as  colonel,  and  fighting  against  each  other.  They 
were  men  who  had  been  close  friends  during  a  long  series  of 
years — men  whom  you  and  I  might  well  be  proud  to  know — 
each  of  them  a  graduate  of  West  Point.  One  of  them  is  s?iid 
to  have  been  seen  to  fall  from  his  saddle,  and  the  fate  of  the 
other  (COLONEL  COGSWELL)  is  at  this  moment  uncertain.  You 
or  I,  while  we  remain  loyal  to  our  flag  and  our  country — while 
we  wish  and  hope  for  success  to  our  arms  in  all  the  conflicts 
that  may  occur — may  regard  with  pity  men  born  on  the  same 
territory,  as  well  educated,  as  deftly  brought  up,  as  generous 
and  as  high  minded  as  ourselves,  because  we  consider  them 
wronj;.  But,  to  look  upon  them  as  mere  outlaws  and  outcasts, 
entitled  to  no  protection,  sympathy,  or  courtesy,  is  something 
which  I  am  perfectly  sure  this  Jury  will  never  do,  and  which 
no  community  would  feel  justified  or  excusable  in  doing. 

Now,  let  me  read  more  to  you  from  this  book  : 

"On  the  18th  of  October,  twelve  delegates  were  elected  to  confer  with 
delegates  from  the  other  New  England  States.  Seven  delegates  were  also 
appointed  by  CONNECTICUT,  and  four  by  RHODE  ISLAND.  New  Hampshire 
was  represented  by  two,  and  VERMONT  by  one.  The  Convention  met  at  Hart 
ford,  Connecticut,  on  tne  15th  of  December,  1814.  After  a  session  of  twenty 
days  a  report  was  adopted,  which,  with  a  slight  stretch  of  imagination,  we 
may  suppose  to  have  originated  from  a  kind  of  en  rapport  association  with 
the  South  Carolina  Convention  of  1861.  We  may  quote  from  the  report." 

Listen  to  this,  gentlemen,  and  say  how  much  right  we  have 
to  stigmatize  as  novel,  unprecedented,  base,  or  wicked,  the 
notions  on  which  the  Southern  revolt  is,  in  a  certain  degree, 
founded  : 

"Whenever  it  shall  appear"  (says  this  Report,  the  result  of  twenty  days' 
labor  among  calm  and  cool  men  of  New  England)  "that  the  causes  are  radical 
and  permanent,  a  separation,  by  equitable  arrangement  will  be  preferable  to 
an  alliance  by  constraint  among  nominal  friends*  but  real  enemies,  inflamed 
by  mutual  hatred  and  jealousy,  and  inviting,  by  intestine  divisions,  contempt 
and  aggressions  from  abroad  ;  but  a  severance  of  the  Union  by  one  or  wore  States 
against  the  will  of  the  rest,  and  especially  in  time  of  war,  can  be  justified 

ONLY    BY    ACTUAL    NECESSITY." 

The  report  then  proceeds  to  consider  the  several  subjects  of 
complaint,  the  principal  of  which  is  the  national  power  over 
the  militia,  claimed  by  Government.  We  will  not  xgree,  say 
they,  that  the  general  Government  shall  iiave  authority  over 
the  militia ;  we  claim  that  it  shall  belong  to  us.  The  report 
goes  on  to  say  : 

"In  this  whole  series  of  devices  and  measures  for  raising  men,  this 
Convention  discerns  a  total  disregard  for  the  Constitution,  and  a  disposi 
tion  to  violate  its  provisions,  demanding  from  the  individual  States  a  tiim 
and  decided  opposition.  -An  iron  despotism  can  impose  no  harder  serv 
ice  upon  the  citizen  than  to  force  him  from  his  home  and  occupation  to  wage 
offensive  war,  undertaken  to  gratify  the  pride  or  passions  of  his  muster.  In 
cases  of  deliberate,  dangerous  and  palpable  infraction  of  th*  Constitution, 


256  TRIAL   OF   THE    OFFICERS    AND    CREW 

affecting  the  sovereignty  of  a  State  and  the  liberties  of  the  people,  it  is  not 
only  the  right  but  the  duty  of  such  State  to  interpose  its  authority  for  the 
protection,  in  the  manner  best  calculated  to  secure  that  end.  When  emergen 
cies  occur,  which  are  either  beyond  the  reach  of  the  judicial  tribunals  or  too 
pressing  to  admit  of  the  delay  incident  to  their  forms,  States  which  have  no 
common  umpire  must  be  their  own  judges  and  execute  their  own  decisions." 

I  think  that  is  pretty  strong  secession  doctrine.  I  do  not 
see  that  it  is  possible,  in  terms,  to  state  it  more  distinctly.  Well, 
it  is  true  that  candid  people  in  that  section  of  the  country  did 
not  approve  these  views,  but  disapproved  them  ;  and  yet  they 
were  the  views,  clearly  and  forcibly  expressed,  of  a  large  num 
ber  of  intelligent  and  moral  people. 

Now,  this  enables  me  to  repeat,  with  a  clearer  view  derived 
from  history,  the  proposition  that  the  Confederate  States  are — 
under  the  law  of  nations,  and  the  principles  embodied  in  the 
Declaration  of  Independence,  sustained  in  the  Revolution,  and 
recognized  by  our  people— in  a  condition  not  distinguishable  from 
that  of  the  Colonies  in  '76,  except  that,  if  there  be  a  difference,  the 
position  of  the  Confederates,  in  reference  to  legality,  as  a  judicial 
question,  is  more  justifiable,  as  it  is  certainly  more  formidable. 
This  word  "  secession"  is,  after  all,  only  a  word  ;  a  word,  as  MY. 
WEBSTER  said  in  one  of  his  great  speeches,  answering  Mr.  Cal- 
houn,  of  fearful  import ;  a  word  for  which  he  could  not  according 
to  his  views,  too  strongly  express  condemnation.  But  whether 
you  use  the  word  "secession,"  or  the  familiar  expression,  "going 
out  of  the  Union,"  or,  "  not  consenting  to  remain  in  the  Union, 
the  idea  is  one  and  the  same.  Much  acumen  and  ingenuity 
have  been  displayed,  even  by  a  mind  profound  as  that  of  Mr. 
Calhoun — a  most  acute  man  and  a  pure  man,  as  Mr.  Webster 
eloquently  attested  in  the  Senate  chamber,  after  the  decease  of 
that  South  Carolina  statesman — I  say  a  good  deal  of  acumen 
has  been  spent  on  the  question  whether  a  State,  or  any  num 
ber  of  States,  have  a  RIGHT  UNDER  THE  CONSTITUTION  to  secede 
from  the  Union.  It  is  a  quarrel  about  phrases.  It  is  not 
necessary  in  any  point  of  view,  political,  philological  or 
moral,  to  use  the  word  "secession"  as  either  excusing  or  justi 
fying  the  act  of  the  Confederate  States.  Suppose  1  grant,  as 
a  distinct  proposition,  in  accordance  with  what  I  admit  to  be 
the  opinion  of  the  great  majority  of  jurists,  and  orators,  and 
statesmen  at  the  North,  that  there  is  no  right  in  a  State,  under 
the  Constitution,  to  recede  from  the  Union — what  then?  I 
shall  not  stop  to  give  you  the  argument  with  which  the  South 
presents  a  view  of  the  question  entirely  different  from  that  of  the 
North.  Of  what  consequence  is  it,  practically,  whether  the 
right  of  the  State  to  go  out  be  found  in  any  part  of  the  com 
pact  called  the  Constitution,  or  be  derived  from  a  source  ex 
trinsic  of  it  ?  You  (let  me  suppose)  are  twelve  States,  and  I 


OF   THE    SCHOONER   SAVANNAH.  257 

am  the  thirteenth.  There  is  the  original  Confederacy  of  States, 
pure  and  simple,  under  the  agreement  with  each  other ;  and 
there,  according  to  the  views  01  Mr.  Webster  and  the  prosecu 
tion  here,  we  became  constituted  in  a  general  Government,  or, 
as  Wheaton  says,  in  a  "  composite  Government,"  giving  great 
power  to  the  general  center.  Now,  what  difference  does  it 
make,  if  you  twelve  States  conclude  to  leave  me,  whether  you 
do  it  by  virtue  of  anything  contained  in  the  Constitution,  or 
inferable  from  the  Constitution,  or  in  virtue  of  some  right 
or  claim  of  right  that  resides  out  of  the  Constitution  ?  It  is 
not  of  the  least  consequence.  I  do  not  care  for  the  word 
"  secession."  It  would  be,  at  the  worst,  revolution.  In  that 
same  great  speech  of  Mr.  Webster's  against  Calhoun,  in  which 
I  think  I  am  justified  in  saying  he  exhausts  the  subject  and 
makes  the  most  formidable  argument  against  the  theory  of 
secession  that  was  ever  uttered  in  the  United  States,  all  the  con 
clusion  he  comes  to  is  this : — "  '  Peaceable  secession !'  I  cannot 
agree  to  such  a  name.  I  cannot  think  it  possible.  It  would  be 
REVOLUTION."  Yery  well.  Of  what  consequence  is  the  designa 
tion  ?  Who  cares  for  the  baptism  or  the  sponsors  ?  It  is  the  thing 
you  look  to.  And  if  they  have  either  the  right  or  the  power  to 
secede  or  revolutionize,  they  may  do  it,  and  there  is  no  tribunal 
on  earth  to  sit  in  judgment  upon  them  ;  though  we  have  the  right 
and  the  power,  on  the  other  hand,  to  battle  for  the  maintenance 
of  the  whole  Union.  Our  friend,  Mr.  Justice  Grier,  says :  "  No 
band  of  CONSPIRATORS  can  overcome  the  Government  MERELY  be 
cause  they  are  dissatisfied  with  the  result  of  an  election"  Now, 
gentlemen,  with  the  deference  he  deserves,  I  would  ask  the 
learned  Justice  Grier,  or  any  other  Justice,  or  my  learned  friend, 
Mr.  Evarts,  how  he  will  proceed  to  dispose  of  the  case  which  I 
am  about  to  put  ?  Suppose  that  all  but  one  of  our  States  meet 
in  their  Legislatures,  and,  by  the  universal  acclaim,  and  with 
the  entire  approval  of  all  the  people,  resolve  that  they  will  re 
main  no  longer  in  association  with  the  others — what  will  you  do 
with  them  ?  That  solitary  State,  which  may  be  Ehode  Island, 
says  :  "  I  have  in  me  the  sovereignty ;  I  have  in  me  all  the  at 
tributes  that  belong  to  empire  or  national  existence;  but  I 
think  I  will  have  to  let  you  go.  Whether  you  call  it  secession, 
or  rebellion,  or  revolution,  you  may  go,  because  you  have  the 
power  to  go,  if  there  be  no  better  reason."  And  power  and 
right  become,  in  reference  to  this  subject,  the  same  thing  in  the 
end.  Do  they  not  ?  Is  there  any  relation  on  earth  that  has  a 
higher  sanction  than  marriage  ?  So  long  as  two  parties,  who 
have  contracted  that  holy  obligation,  have,  in  truth,  no  fault 
to  find  with  each  other,  is  there  any  right  in  either  to  go  away 
from  the  other  ?  There  is  no  such  right,  either  by  the  law  of 
17 


258  TRIAL   OF   THE   OFFICERS    AND   CREW 

God  or  of  man.  But  there  is  a  power  to  do  it,  is  there  not? 
And  if  the  wife  flee  from  her  husband,  instead  of  towards  him, 
or  if  a  husband  go  from  his  wife,  is  there  any  law  of  society 
that  can  compel  them  to  unite  ?  And  why  not  ?  Because  man 
kind,  though  they  have  perpetrated  many  follies,  have,  at  least, 
recognized  that  this  was  a  remedy  utterly  impossible.  In  the 
relation  of  partnership  between  two  individuals,  does  not  the 
same  state  of  things  exist?  and  do  not  the  same  arguments  sug 
gest  themselves  ?  I  ask  my  learned  brother  what  he  can  do  in 
reference  to  the  ten  States  that  have  claimed  to  secede  from  the 
Union,  and  have  organized  themselves  into  a  Government?  I 
will  give  him  all  the  army  he  demands,  and  will  let  him  retain 
in  the  chair  of  State  this  honest,  pleasant  Mr.  Lincoln,  who  is 
not  the  greatest  man  in  the  world — nobody  will  pretend  that — 
but  is  as  good  and  honest  a  person  as  there  is  in  the  world. 
There  is  not  the  slightest  question  but  that,  in  all  his  move 
ments,  he  only  proposes  what  he  deems  consistent  with  the 
welfare  and  honor  of  the  country.  I  will  give  my  learned 
brother  the  army  now  on  the  banks  of  the  Potomac,  doing  noth 
ing,  and  millions  of  money,  and  then  I  desire  him  to  tell  us 
how,  with  all  these  aids,  he  can  coerce  those  ten  States  to  re 
main  in  the  Confederacy.  What  was  said  by  MR.  BUCHANAN 
on  the  subject,  in  his  Message  of  December  last  ?  "  1  do  not 
propose"  said  he,  "  to  attempt  any  coercion  of  the  States.  I  be 
lieve  that  it  would  be  utterly  impossible.  You  cannot  compel  a 
State  to  remain  in  the  Union.  They  may  refuse  to  send  Sena 
tors  to  the  Senate  of  the  United  States.  They  may  refuse  to 
choose  electors,  and  the  Government  stops"  Well,  I  grant  you 
that  this  is  not  the  view  of  other  men  quite  as  eminent  as  Mr. 
Buchanan.  I  grant  you  that  the  great  CHIEF  JUSTICE  MARSHALL — 
a  man  to  whom  it  would  be  bad  taste  to  apply  any  other  word 
than  great,  because  that  includes  everything  which  character 
ized  him — I  grant  you  that  brilliant  son  of  Virginia  met  an 
argument  like  this  with  the  great  power  that  distinguished  all 
his  judgments,  when  a  question  arose  in  the  Supreme  Court  of 
the  United  States,  affecting  the  State  of  Virginia  and  a  citizen. 
But  of  what  importance  is  it  what  any  man  thinks  about  it? 
What  is  your  theory  as  compared  with  your  practice  ?  Now, 
I  will  give  my  friend  all  the  power  he  wants,  and  ask  him  to 
deal  with  these  ten  States.  Do  you  believe  it  to  be  within  the 
compass  of  a  possibility  to  compel  them  to  remain  in  the  Union, 
as  States,  if  they  do  not  wish  it  ? 

Thus  1  reach  the  conclusion,  on  even  the  weakest  view  of  the 
case  for  us,  that  the  POWER  to  secede,  and  the  POWER  to  organ 
ize  a  Government  existing,  there  is  no  power  on  earth  which, 
on  any  rule  of  law,  can  interfere  with  it,  except  that  of  war, 
conducted  on  the  principles  of  civilized  war. 


OF    THE    SCHOONER    SAVANNAH.  259 

Now,  then,  let  us  look  at  those  Confederate  States  a  little 
more  closely.  What  says  Vattel,  in  the  passage  referred  to 
by  my  learned  friend,  Mr.  Larocque,  and  which  it  is  of  the  ut 
most  importance,  in  this  connection,  to  keep  in  mind  ? 

[Here  Mr.  Brady  read  an  extract,  which  will  be  found  in 
the  argument  of  Mr.  Larocque.*] 

Is  not  that  clearly  expressed,  and  easy  to  understand  ?  All 
of  us  comprehend  and  can  readily  apply  it  in  this  case.  That 
resolves  the  question,  if  indeed  this  be  the  law  of  the  land, 
into  this  :  Have  the  Confederate  States,  on  any  show  of  reason, 
or  without  it— for  that  does  not  affect  the  inquiry — attained 
sufficient  STRENGTH,  and  BECOME  SUFFICIENTLY  FORMIDABLE,  to 
entitle  them  to  be  treated,  under  that  law  of  nations,  as  in  a  con 
dition  of  CIVIL  WAR,  even  if  they  have  not  constituted  a  separate, 
sovereign,  and  independent  nation  f  Really,  it  seems  to  me,  too 
clear  for  doubt,  that  they  have.  We  had,  in  the  Revolution, 
thirteen  Colonies,  with  a  limited  treasury,  almost  destitute  of 
means,  and  with  some  of  our  soldiers  so  behaving  themselves, 
in  the  early  part  of  the  struggle,  that  General  Washington,  on 
one  memorable  occasion,  threw  down  his  hat  on  the  ground 
and  asked,  "  Are  these  the  men  with  whom  I  am  to  defend  the 
liberties  of  America  1"  And  those  of  you,  gentlemen,  who  have 
read  his  correspondence,  know  how  constantly  he  was  com 
plaining  to  Congress  about  the  inefficiency  of  the  troops,  and 
their  liability  to  desertion.  I  remember  that  he  says  some 
thing  like  this  :  "  There  is  no  doubt  that  patriotism  may  accom 
plish  much.  It  has  already  effected  a  good  deal.  But  he  who 
relies  on  it  as  the  means  of  carrying  him  through  a  long  war 
will  find  himself,  in  the  end,  grievously  mistaken.  It  is  not  to  be 
disguised  that  the  great  majority  of  those  who  enter  the  service 
do  so  with  a  view  to  the  pay  which  they  are  to  receive ;  and, 
unless  they  are  satisfied,  desertions  may  be  expected."  He 
also  remarked,  at  another  period,  in  regard  to  the  troops  of  a 
certain  portion  of  our  country,  which  1  will  not  name,  that  they 
would  have  their  own  way ;  that  when  their  term  of  enlistment 
expired  they  would  go  home  ;  and  that  they  would  sometimes 
go  before  that  period  arrived.  That,  I  am  mortified  to  say,  has 
been  imitated  in  the  present  struggle. 

Such  was  the  early  condition  of  the  Colonies. 

Now,  the  Southern  Confederacy  have  ten  States — they  had 
seven  when  this  commission  was  issued — with  about  eight 
millions  of  people.  They  have  separate  State  governments, 
which  have  existed  ever  since  the  Union  was  formed,  and  which 
would  exist  if  this  revolution  were  entirely  put  down.  They 
have  excluded  us  from  every  part  of  their  territory,  except  a 

*  See  pages  105,  106,  and  107. 


260  TRIAL   OF   THE   OFFICERS    AND    CREW 

little  foothold  in  the  Eastern  part  of  Virginia,  and  "  debateable 
ground  "  in  Western  Virginia.  We  have  not  yet  been  able  to 
penetrate  farther  into  the  Confederate  States.  We  cannot  send 
even  food  to  the  hungry  or  medicine  to  the  afflicted  there. 
We  cannot  interchange  the  commonest  acts  of  humanity  with 
those  of  our  friends  who  are  shut  up  in  the  South.  I  do  think, 
with  the  conceded  fact  looking  directly  into  the  face  of  the 
American  people  that,  with  all  the  millions  at  the  command  of 
the  Administration,  there  is  yet  found  sufficient  force  and  power 
in  the  Confederate  States  to  maintain  their  territory,  their  Gov 
ernment,  their  legislature,  their  judiciary,  their  executive,  and 
their  army  and  navy,  it  is  vain  and  idle  to  say  that  they  are 
not  now  in  a  state  of  civil  war,  and  that  they  ought  to  be  ex 
cluded  from  the  humanities  incident  to  that  condition.  Such 
an  idea  should  not,  I  think,  find  sanction  in  either  the  heart, 
the  conscience,  or  intelligence  of  any  right-minded  man. 

Not  only  are  the  i'acts  already  stated  true,  but  the  Confed 
erate  States  have  been  RECOGNIZED  AS  A  BELLIGERENT  POWER  by 
FRANCE  and  ENGLAND,  as  we  have  proved  by  the  proclama 
tions  placed  before  you ;  and  they  have  been  recognized  by  OUR 
Government  as  belligerents,  at  least.  That  I  submit,  as  a  dis 
tinct  question  of  fact,  to  the  Jury,  unless  the  Court  conceive  that 
it  is  a  pure  question  of  law, — in  which  case  I  am  perfectly  con 
tent  that  the  Court  shall  dispose  of  it. 

And  where  do  I  find  this  ?  I  find  it  in  the  admission  of 
Mr.  Lincoln,  in  his  Inaugural  Address,  that  there  is  to  be  no 
attempt  at  any  physical  coercion  of  these  States — a  concession 
that  it  is  a  thing  not  called  for,  not  consistent  with  the  views 
of  the  Administration,  or  with  the  general  course  of  policy  of 
the  American  people.  According  to  his  view,  there  was  to 
be  no  war.  I  find  it  in  the  correspondence  of  General  Ander 
son  with  Governor  Pickens,  which  has  been  read  in  the  course 
of  the  trial — which  of  course  has  been  communicated  to  the 
Government,  will  be  found  among  its  archives,  and  of  which 
no  disapprobation  has  been  expressed.  And  here  I  borrow 
a  doctrine  from  the  District  Attorney,  who  said,  when  I  de 
clared  that  the  legislative  branch  of  the  Government  had  not 
given  their  declaration  as  to  what  was  the  true  condition  of  the 
South,  that  their  silence  indicated  what  it  was;  and  so,  the 
silence  of  the  Government,  in  not  protesting  against  this  cor 
respondence,  is  good  enough  for  my  purpose. 

The  proclamation  of  the  President,  calling  for  75,000  troops, 
and  then  calling  for  a  greater  number,  would,  in  any  Court  in 
Christendom,  outside  of  the  United  States,  be  regarded,  under 
international  law,  as  conclusive  evidence  that  those  troops  were 
to  be  used  against  a  belligerent  power.  Who  ever  heard  of 
EIGHT  MILLIONS  of  people,  or  of  ONE  MILLION  of  people,  being 


OF   THE   6CHOONEB   SAVANNAH.  261 

ALL  TRAITORS,  and  being  ALL  LIABLE  TO  PROSECUTION  FOR  TREASON 
AT  ONCE.  I  find  this  recognition  in  the  exchange  of  prisoners, 
which  we  know,  as  a  matter  of  history,  lias  occurred.  I  find 
it  in  the  capitulation  at  Hatter  as,  at  which,  and  by  which, 
GENERAL  BUTLER,  of  his  own  accord,  when  lie  refused  the 
terms  of  surrender  proposed  by  Commodore  Barren,  declared 
that  the  garrison  should  be  taken  as  PRISONERS  OF  WAR  ;  and 
that  has  been  communicated  to  the  Government,  and  no  dis 
satisfaction  expressed  about  it. 

And,  gentlemen,  I  rest  it,  also,  as  to  the  recognition  by  our 
Government,  on  the  fact  to  which  MR.  SULLIVAN  so  appropri 
ately  alluded — the  exchange  of  flags  of  truce  between  the  two 
contending  forces,  as  proved  by  one  of  the  officers  of  the  navy. 
A  flag  of  truce  sent  to  rebels — to  men  engaged  in  lawless  in 
surrection,  in  treasonable  hostility  to  the  Government,  with  a 
view  to  its  overthrow  !  Why,  gentlemen,  it  is  the  grandest,  as 
it  is  the  most  characteristic,  device  by  which  humanity  protects 
men  against  atrocities  which  they  might  otherwise  perpetrate 
upon  each  other — that  little  white  nag,  showing  itself  like  a 
speck  of  divine  snow  on  the  red  and  bloody  field  of  battle ; 
coming  covered  all  over  with  divinity  ;  coming  in  the  hand  of 
peace,  who  rejoices  to  see  another  place  where  her  foot  may 
rest ;  welcome  as  the  dove  which  returned  to  the  ark ;  corning, 
I  say,  in  the  hand  of  peace,  who  is  the  great  conqueror,  and 
before  whom  the  power  of  armies  and  the  bad  ambitions  and 
great  struggles  of  men  must  ultimately  be  extinguished.  This, 
of  itself,  will  be  regarded  by  mankind,  when  they  reflect 
wisely,  as  sufficient  to  show  that  our  Government  must  not  be 
brutal ;  and  we  seek  to  rescue  the  Administration  from  any 
imputation  that  it  wants  to  deny  to  the  South  the  common 
humanities  which  belong  to  warfare,  by  your  refusing  to  let 
men  be  executed  as  pirates,  or  to  make  a  distinction  between 
him  who  wars  on  the  deep  and  him  who  wars  upon  the  land. 

It  is  very  strange  if  the  poor  fellows  who  had  no  means  of 
earning  a  meal  of  victuals  in  the  city  of  Charleston,  like  some 
of  those  who  composed  the  crew  of  this  vessel,  shut  up  as  if 
in  a  trap,  should  be  hanged  as  pirates  for  being  on  board  a 
privateer,  under  a  commission  from  the  Confederate  States, 
and  that  those  who  have  slain  your  brothers  in  battle  should 
be  taken  as  prisoners  of  war,  carefully  provided  for,  and  treated 
with  the  benevolence  which  we  extend  to  all  prisoners  who  fall 
into  our  hands — the  same  humanities  that,  as  you  perceive, 
are  provided  for  in  the  instructions  from  Jefferson  Davis,  found 
on  board  the  privateer,  directing  that  the  prisoners  taken  should 
be  dealt  with  gently  and  leniently,  and  to  give  them  the  same 
rations  as  were  supplied  to  persons  in  the  Confederate  service. 

But  it  seems  to  be  suggested  in  Vattel,  and  certainly  is 


TRIAL    OF   THE    OFFICERS    AND    CREW 

promulgated  in  the  opinion  of  Mr.  Justice  Grier,  that,  although 
the  Confederate  States  have  obtained  any  proportions  however 
large,  any  power  however  great,  there  must  be  some  sound 
cause,  some  reasonable  pretext,  for  this  revolt.  Well,  who  is  to 
judge  of  that?  We  do  not,  says  the  Government,  admit  that 
the  cause  is  sufficient.  The  United  States  Government  says 
there  is  none.  Now,  I  propose  to  show  you  what  the  South  says 
on  that  subject — to  lay  before  you  matters  of  history  with  which 
you  are  all  acquainted — to  show  you  what  is  supposed  by  men 
as  able  as  any  of  us,  as  well  acquainted  with  the  history  of  the 
country,  and  as  pure — what  is  supposed  by  them  to  have  crea 
ted  this  state  of  things,  entitling  the  Confederate  States  to 
leave  us  and  be  a  community  by  themselves.  I  will  hereafter 
appeal  to  the  late  Daniel  Webster  as  a  witness  that  one  of  the 
causes  assigned  by  the  Southern  States  for  their  act  is  at  least 
the  expression  and  proof  of  a  great  wrong  done  them. 

In  the  first  place,  a  large  proportion  of  our  people  at  the 
North  claim  the  right  to  abolish  slavery  in  places  ceded  to  the 
United  States,  or  formed  by  contributions  from  the  States,  such 
as  the  District  of  Columbia.  I  do  not  know  what  my  learned 
friends'  views  on  that  subject  are,  but  I  know  that  the  two 
great  political  parties  of  the  country  have  had  distinct  opinions 
on  that  subject.  By  one,  it  has  been  steadily  maintained,  and 
with  great  energy,  that,  so  far  as  the  nation  has  power  over  the 
subject  of  slavery,  it  shall  exercise  it  to  abolish  slavery.  And 
the  South  says  :  "  If  you  undertake  to  abolish  slavery  in  any 
fort,  any  ceded  place,  any  territory  that  we  have  given  you  for 
the  purposes  of  the  National  Government,  we  will  regard  that 
as  a  breach  of  faith  ;  for,  whether  you  abhor  slavery,  or  only 
pretend  to  abhor  it,  it  is  the  means  of  our  life.  I,  a  Southerner, 
whose  mother  was  virtuous  as  yours — whom  I  loved  as  you 
loved  your  mother — received  from  her  at  her  death,  as  my  in 
heritance,  the  slaves  whom  my  father  purchased — whom  I  am 
taught,  under  my  religious  belief,  to  regard  as  property,  and 
whom  I  will  so  continue  to  regard  as  long  as  I  live.  That  is 
the  argument  of  the  South ;  and  if  men  at  the  South  con 
scientiously  believe  that,  from  their  knowledge  of  the  senti 
ments,  factions,  or  agitations  at  the  North,  such  as  these,  there 
is  an  intention  to  make  a  raid  and  foray  on  the  institution  of 
slavery,  deprive  them  of  all  the  property  they  have  in  the 
world,  and  condemn  them  to  any  stigma — is  it  any  wonder  that 
they  should  express  and  act  upon  such  an  opinion  ? 

Next,  gentlemen,  in  the  category  of  their  complaints,  is  the 
agitation  for  the  prohibition  of  what  is  called  the  inter-State 
slave  trade.  Next  is  the  exclusion  of  slavery  from  new  terri- 
twy,  which,  says  the  South,  "  we  helped  to  acquire  by  our  blood 
and  treasure — towards  which  we  contributed  as  you  did.  If 


OF    THE    SCHOONER   SAVANNAH.  263 

you  had  a  gallant  regiment  in  the  field  in  Mexico,  had  we  not 
the  Palmetto  and  other  regiments,  which  came  back — such  of 
them  as  survived — covered  with  glory  ?" 

This  has  been  the  great  subject  that  has  recently  divided 
our  political  parties — the  Republican  party,  so-called,  proclaim 
ing  with  great  earnestness  and  great  decency  its  sincere  con 
viction  that  it  was  a  moral  and  political  right  to  prevent  slavery 
from  being  carried  into  new  territory,  and  insisting  that  the 
slave-owner,  if  he  went  there  with  his  slaves,  must  bring  them 
to  a  state  of  freedom. 

There  is  another  party  of  intelligent  and  upright  men, 
claiming  that  the  South  has  the  same  right  to  go  into  the  Ter 
ritories  with  their  slaves  as  the  North  has  to  go  with  their  im 
plements  of  agriculture ;  and  these  irreconcilable  differences 
of  opinion  are  only  to  be  settled  at  the  polls,  by  determining 
the  question  which  shall  have  sway  either  in  the  executive 
councils  or  in  the  legislation  of  the  Government.  A  grand 
subject  of  debate,  for  some  time,  was  the  endeavor  to  acquire 
Texas ;  and  I  need  not  tell  you  that  the  great  reason  why  the 
acquisition  of  Texas  was  opposed  by  the  Whig  party  was,  that 
they  thought  it  might  induce  to  the  extension  of  slavery. 
When  Mr.  CHOATE  made  his  great  speech  against  it  in  New 
York,  he  confessed  that  that  wras  the  point,  and  said :  "  You 
may  be  told  that  this  is  a  new  garden  of  the  Hesperides ;  but 
do  not  receive  any  of  its  fruits :  touch  not,  taste  not,  handle 
not,  for  in  the  hour  that  you  eat  thereof  you  shall  surely  die." 

Next,  gentlemen,  is  the  nullification  of  the  Fugitive- Slave 
Law  by  several  of  the  States  of  New  England,  which  say : 
"  True  it  is  that  the  Constitution  of  the  United  States  declares 
that  the  fugitive  shall  be  delivered  up  to  his  master ;  true  it  is 
that  Congress  has  made  provision  for  his  restoration ;  true  it  is 
that  the  Supreme  Court  of  the  United  States  has  declared  that 
he  must  be  given  up  ;  but  we  say — we,  a  sovereign  State — that 
if  any  officer  of  our  Government  lends  any  aid  or  sanction  for 
such  purpose  he  shall  be  guilty  of  a  crime.  If  you  want  any 
slave  delivered  to  his  master,  you  must  do  it  exclusively  by 
the  authority  of  the  Federal  Government,  by  its  power  and 
officers."  And  because,  in  the  city  of  Boston,  Mr.  LORING,  a 
virtuous  citizen,  a  respectable  lawyer,  performed,  in  his  official 
capacity,  an  official  act  toward  the  restoration  of  a  slave  to  his 
master,  he  was  removed  from  his  judicial  station  by  the  Exe 
cutive  of  Massachusetts. 

The  District  Attorney :  (To  Mr.  Evarts)  He  was  not  re 
moved  for  that  reason. 

Mr.  Brady :  The  District  Attorney  says  he  was  not  re 
moved  for  that  reason.  Well,  he  was  removed  just  about  that 


264:  TRIAL    OF   THE    OFFICERS    AND    CREW 

time.  (Laughter.)  It  was  a  remarkable  coincidence  ;  it  was 
like  the  caution  given  to  the  elder  Weller,  when  he  was  trans 
ferring  a  number  of  voters  to  the  Eatonsville  election,  not  to 
upset  them  in  a  certain  ditch,  and,  as  he  said,  by  a  very  ex 
traordinary  coincidence,  he  got  them  into  that  very  place. 

But,  gentlemen,  this  is  a  solemn  subject,  and  is  not  to  be 
dealt  with  lightly.  And  here  it  is  that  I  will  refer  to  the 
great  speech  of  Mr.  Webster,  in  the  Senate  of  the  United 
States,  on  the  1th  of  March,  1850 — to  be  found  in  the  fifth  vol 
ume  of  his  works,  page  353.  Mr.  Webster  was  a  great  man, 
gentlemen,  like  John  Marshall,  and  he  could  stand  that  test  of 
a  great  man — to  be  looked  at  closely.  Our  country  produces 
an  abundance  of  so-called  great  men.  The  very  paving-stones 
are  prolific  with  them.  Every  village,  and  hamlet,  and  blind 
alley  has  one,  at  least.  And  when  we  catch  a  foreigner,  just 
arrived,  we  first  ask  him  what  he  thinks  of  our  country,  and 
then,  pointing  to  some  person,  say,  "  He  is  one  of  the  most 
remarkable  men  in  the  country;"  until,  finally,  the  foreigner 
begins  to  conclude  that  we  are  all  remarkable  men ;  that,  like 
children,  we  are  all  prodigies  until  we  grow  up,  when  we  give 
up  the  business  of  being  prodigies  very  soon,  as  most  of  us  have 
had  occasion  to  illustrate. 

Mr.  Webster,  I  say,  was  a  great  man,  because  he  could 
stand  the  test  of  being  looked  at  very  near,  and  he  grew  greater 
all  the  time.  There  is  no  incident  in  my  life  of  which  1  cher 
ish  a  more  pleasant  or  more  vivid  recollection  than  being  once 
in  a  small  room,  with  some  other  counsel,  associated  with  Mr. 
Webster,  about  the  time  he  made  his  last  professional  effort, 
when,  in  a  moment  of  melancholy,  one  night  about  twelve 
o'clock,  he  came  up,  and,  sitting  down  on  the  corner  of  a  very 
old-fashioned  bedstead,  put  his  arm  around  the  post,  and  pro 
ceeded  to  enlighten  and  fascinate  us  with  a  familiar,  and  some 
times  playful,  account  of  his  early  life  ;  his  first  arguments  in 
the  Supreme  Court  of  the  United  States  ;  and  the  course,  in  its 
inner  developments,  of  that  life  which,  in  its  public  features, 
has  been  so  interesting  to  the  country,  and  is  to  be  always  so 
interesting  to  mankind. 

"Mr.  President,"  said  he,  "in  the  excited  times  in  which  we  live  there 
is  found  to  exist  a  state  of  crimination  and  recrimination  between  the  North 
and  South.  There  are  lists  of  grievances  produced  by  each,  and  those  griev 
ances,  real  or  supposed,  alienate  the  minds  of  one  portion  of  the  country  from 
the  other,  exasperate  the  feelings,  and  subdue  the  sense  of  fraternal  affec 
tion,  patriotic  love,  and  mutual  regard.  I  shall  bestow  a  little  attention,  sir, 
upon  these  various  grievances  existing  on  the  one  side  and  on  the  other.  I 
begin  with  complaints  of  the  South.  I  will  not  answer  further  than  I  have 
the  general  statements  of  the  honorable  Senator  from  South  Carolina,  that 
the  North  has  prospered  at  the  expense  of  the  South,  in  consequence  of  the 
manner  of  administering  this  Government,  in  the  collecting  of  its  revenues,  and 


OF   THE   SCHOONER   SAVANNAH.  265 

so  forth.  These  are  disputed  topics,  and  I  have  no  inclination  to  enter  into 
them.  But  I  will  allude  to  other  complaints  of  the  South,  and  especially  to 
one  which  has,  in  my  opinion,  just  foundation ;  and  that  is,  that  there  has 
been  found  at  the  North,  among  individuals  and  among  legislators,  a  disincli 
nation  to  perform  fully  their  constitutional  duties  in  regard  to  the  return  of 
persons  bound  to  service  who  have  escaped  into  the  Free  States.  In  that 
respect  the  South,  in  my  judgment,  is  right,  and  the  North  is  wrong.  Every 
member  of  any  Northern  Legislature  is  bound  by  oath,  like  every  other  offi 
cer  in  the  country,  to  support  the  Constitution  of  the  United  States ;  and  the 
article  of  the  Constitution  (Art.  iv.,  sec.  2,  subd.  2)  which  says  to  these  States 
that  they  shall  deliver  up  fugitives  from  service,  is  as  binding  in  honor  and 
conscience  as  any  other  article.  No  man  fulfills  his  duty  in  any  Legislature 
who  sets  himself  to  find  excuses,  evasions,  escapes,  from  this  constitutional 
obligation.  I  have  always  thought  that  the  Constitution  addressed  itself  to 
the  Legislatures  of  the  States,  or  to  the  States  themselves.  It  says  that 
those  persons  escaping  to  other  States  *  shall  be  delivered  up ;'  and  I  confess 
I  have  always  been  of  the  opinion  that  it  was  an  injunction  upon  the  States 
themselves.  When  it  is  said  that  a  person  escaping  into  another  State,  and 
coming,  therefore,  within  the  jurisdiction  of  that  State,  shall  be  delivered  up, 
it  seems  to  me  the  import  of  the  clause  is,  that  the  State  itself,  in  obedience 
to  the  Constitution,  shall  cause  him  to  be  delivered  up.  That  is  my  judg 
ment.  I  have  always  entertained  that  opinion,  and  I  entertain  it  now.  But 
when  the  subject,  some  years  ago,  was  before  the  Supreme  Court  of  the 
United  States,  the  majority  of  the  Judges  held  that  the  power  to  cause  fugi 
tives  from  service  to  be  delivered  up  was  a  power  to  be  exercised  under  the 
authority  of  this  Government.  I  do  not  know,  on  the  whole,  that  it  may  not 
have  been  a  fortunate  decision.  My  habit  is  to  respect  the  result  of  judicial 
deliberations  and  the  solemnity  of  judicial  decisions.  As  it  now  stands,  the 
business  of  seeing  that  these  fugitives  are  delivered  up  resides  in  the  power 
of  Congress  and  the  national  judicature ;  and  my  friend  at  the  head  of  the 
Judiciary  Committee  (Mr.  Mason)  has  a  bill  on  the  subject  now  before  the 
Senate,  which,  with  some  amendments  to  it,  I  propose  to  support,  with  all 
its  provisions,  to  the  fullest  extent  And  I  desire  to  call  the  attention  of  all 
sober-minded  men  at  the  North,  of  all  conscientious  men,  of  all  men  who  are 
not  carried  away  by  some  fanatical  idea  or  some  false  impression,  to  their 
constitutional  obligations.  I  put  it  to  all  the  sober  and  sound  minds  at  the 
North,  as  a  question  of  morals  and  a  question  of  conscience :  What  right 
have  they,  in  their  legislative  capacity  or  any  other  capacity,  to  endeavor  to 
get  around  this  Constitution,  or  to  embarrass  the  free  exercise  of  the  rights 
secured  by  the  Constitution  to  the  persons  whose  slaves  escape  from  them  ? 
None  at  all— none  at  all.  Neither  in  the  forum  of  conscience,  nor  before  the 
face  of  this  Constitution,  are  they,  in  my  opinion,  justified  in  such  an  attempt. 
Of  course,  it  is  a  matter  for  their  consideration.  They,  probably,  in  the  ex 
citement  of  the  times,  have  not  stopped  to  consider  of  this.  They  followed 
what  seemed  to  be  the  current  of  thought  and  of  motives,  as  the  occasion 
arose ;  and  they  have  neglected  to  investigate  fully  the  real  question,  and  to 
consider  their  constitutional  obligations ;  which  I  am  sure,  if  they  did  con 
sider,  they  would  fulfill  with  alacrity.  I  repeat,  therefore,  sir,  that  here  is  a 
well-founded  ground  of  complaint  against  the  North,  which  ought  to  be  re 
moved  ;  which  it  is  now  in  the  power  of  the  different  departments  of  this 
Government  to  remove ;  which  calls  for  the  enactment  of  proper  laws  author 
izing  the  judicature  of  this  Government  in  the  several  States  to  do  all  that 
is  necessary  for  the  recapture  of  fugitive  slaves,  and  for  their  restoration  to 
those  who  claim  them.  Wherever  I  go,  and  whenever  I  speak  on  the  sub 
ject, — and  when  I  speak  here  I  desire  to  tp  eak  to  the  whole  North, — I  say 
that  the  South  has  been  injured  in  this  respect,  and  has  a  right  to  complain ; 


266  TRIAL    OF   THE   OFFICERS    AND    CREW 

and  the  North  has  been  too  careless  of  what  I  think  the  Constitution  per 
emptorily  and  emphatically  enjoins  upon  her  as  a  duty." 

Now,  gentlemen,  this  may  not  accord  with  the  sentiments 
of  some  of  you  ;  but  what  right  have  you — if  you  should  differ 
entirely  with  Mr.  Webster — if  you  should  believe  that  there  is 
a  great  law  of  our  Maker,  a  higher  law  than  any  created  on 
earth,  which  requires  you  to  refuse  obedience  to  that  Fugitive- 
Slave  Law,  and  makes  it  a  high  duty  to  resist  its  execution — 
what  right,  I  say,  have  you  to  force  that  opinion  upon  me  ? 
What  right  have  you  to  require  that  I  shall  yield  an  allegiance 
to  all  parts  of  the  Constitution  which  you  approve,  while  you 
refuse  it  allegiance  whenever  you  please  ? 

They  have  assigned,  as  another  cause,  the  notorious  fact  of 
the  establishment  of  what  is  known  as  "  the  Underground  Rail 
road"  aiding  in  the  escape  and  running  off  of  slaves,  and  the 
clandestine  removal  of  property  which  belongs  to  the  people 
of  the  South.  They  assign,  as  another,  the  rescue  of  persons 
claimed  as  fugitive  slaves,  as  in  the  case  of  the  Jerry  rescue,  in 
or  near  Syracuse.  Passing  once  through  that  city,  I  saw  a 
placard  announcing  a  grand  demonstration  to  come  off  in  honor 
of  that  achievement — the  forcible  rescue  of  a  man  from  the 
hands  of  the  Government  who  was  claimed  under  the  provisions 
of  the  Constitution  and  an  act  of  Congress  which  the  Federal 
Courts  had  declared  to  be  constitutional ! 

They  refer,  also,  to  the  Creole  case,  in  which,  according  to 
the  Southern  view  of  the  subject,  it  was  virtually  and  practical 
ly  decided  that  no  protection  was  to  be  afforded  to  slaves,  as 
property  of  Southern  men,  on  the  high  seas.  That  is  their  view 
of  it,  and  it  has  been  expressed  by  able  men  with  a  great  deal 
of  force. 

They  also  refer  to  the  John  Brown  raid,  which  we  have 
not  forgotten — to  the  invasion  of  Virginia  by  that  man,  who 
furnished  the  negroes  with  implements  of  slaughter.  With 
the  results  of  that  outrage  you  are  all  familiar. 

They  refer  to  the  general  assault  on  the  institution  of  slavery 
which  many  men  at  the  North  have  felt  it  on  their  conscience 
to  make,  including  such  distinguished  orators  as  LLOYD  GARRI 
SON,  GERRIT  SMITH,  the  fascinating  and  silver-tongued  PHILLIPS 
— to  whom  I  have  listened  with  pleasure,  much  as  I  detested 
his  sentiments — and  THEODORE  PARKER,  the  greatest  of  them 
all. 

They  refer  to  the  declarations  of  cultivated  men  at  the 
North,  that  there  were  no  means  to  which  men  might  not  re 
sort  to  extirpate  slavery ;  and  who,  when  against  them  were 
cited  certain  passages  of  Scripture  that  were  supposed  to  sanc 
tion  the  institution  of  slavery,  fell  back  on  the  position  that 
our  Constitution  was  an  "infidel  Constitution,"  and  that  even 


OF  THE   SCHOONER   SAVANNAH.  267 

the  Bible  was  not  to  be  regarded  as  any  authority  for  such  a 
monstrous  error  as  that. 

They  refer  to  the  declaration  of  Mr.  Lincoln,  in  one  of  his 
addresses  to  the  public,  that  Government  could  not  endure  half 
slave  and  half  free. 

But,  gentlemen,  it  was  not  strange  to  the  American  people 
to  know  that  there  was  danger  of  such  a  secession  as  has  oc 
curred.  Some  years  ago  it  would  have  been  esteemed  the  most 
impossible  thing  in  the  world.  It  has  come  to  happen  in  your 
time  and  mine.  It  Las  been  predicted.  I  know  a  very  remark 
able  instance  in  which  that  prediction  was  stated  so  clearly 
that  the  author  of  it  would  seem  to  have  been  invested  with 
the  spirit  and  power  of  prophecy.  We  cherished  the  abiding 
hope  that  this  would  not  occur;  but  we  now  see  that  the  causes 
moving  toward  it  were  irresistible,  and  that  it  has  become  an 
event  of  history. 

Now,  if  these  seceded  States,  on  any  reasoning,good  or  bad, 
on  sufficient  cause,  or  on  a  belief  that  they  had  sufficient  cause, 
determined  that  it  was  not  their  interest  to  remain  in  the  Union, 
they  only  subscribed  to  those  doctrines  promulgated  by  the 
Hartford  Convention,  and  agreed  with  Blackstone,  and  with  all 
the  writers  on  civil  law,  that  a  state  of  things  having  happened 
in  which  they  could  have  no  redress,  except  by  their  own  act, 
what  course  were  they  to  adopt  ?  It  is  not  for  you  or  for  me  to 
say,  at  this  time,  whether  they  were  right  or  wrong  in  their 
opinions  or  reasons.  I  ask  you,  what  course  were  they  to  adopt  ? 
and  what  has  been  the  argument  heretofore  ?  Why,  the  argu 
ment  that,  when  such  a  collision  of  interest  took  place — when 
the  States  supposed  that  the  General  Government  was  trespass 
ing  on  them  and  usurping  powers,  making  war  upon  their  in 
stitutions,  oppressing  them,  or  failing  to  accomplish  the  ends 
for  which  the  Government  was  established — they  should  appeal 
to  the  Supreme  Court  of  the  United  States  as  common  arbiter, 
and  that  its  decision  should  be  final.  My  friend,  Mr.  Larocque, 
has  called  attention  to  cases  that  might  happen,  of  collision  be 
tween  executives  of  States  and  of  the  United  States,  which 
could  not  possibly  be  submitted  to  the  decision  of  the  Supreme 
Court  of  the  United  States,  and  I  shall  not  mar  his  argument 
or  his  examples  by  repeating  them  or  saying  anything  in  ad 
dition. 

But,  suppose  that  the  next  Congress  should  pass  a  law  pro 
viding  that  the  State  of  New  York  should  pay  all  the  expenses 
of  this  war  for  ten  years  to  come,  if  it  last  so  long ;  and  that  ev 
ery  boy  of  eighteen  years,  in  the  State  of  New  York,  should  be 
mustered  into  the  service,  and  coerced  to  march  to  Washing 
ton  within  ten  days ;  and  that  no  man  in  the  State  of  New  York 
should  be  permitted  to  go  into  another  State  without  permis- 


268  TRIAL   OF  THE   OFFICERS   AND   CREW 

sion  from  the  Executive ;  or  should  do  anything  of  a  similar 
character, — what  course  would  the  State  of  New  York  have  un 
der  such  circumstances  ?  What  course,  but  disobedience  to  the 
law,  or  insurrection,  or  revolution?  Will  my  learned  friends 
say  that,  in  a  case  like  that,  you  could  appeal  to  the  arbitra 
ment  of  the  Supreme  Court  of  the  United  States  ?  Is  that  so? 
Has  the  Supreme  Court  of  the  United  States,  under  such  cir 
cumstances,  any  way  of  redressing  this  wrong  ?  But,  suppose 
I  concede  that  it  has  :  what  said  the  Republican  party  in  ref 
erence  to  that  Court  ?  I  instance  that  party,  because  it  has  the 
administration  of  the  General  Government. 

I  remember  distinctly  that  MR.  CHASE,  now  one  of  the  Cab 
inet  officers,  in  a  public  speech,  shortly  before  the  Presidential 
election,  and  MR.  WADE,  of  Ohio,  a  Senator  of  the  United 
States — both  able  men,  grave  men,  honorable  men — insisted, 
before  the  people,  that  the  Supreme  Court  of  the  United  States 
was  a  mere  organization  of  a  certain  number  of  respectable 
gentlemen,  whose  opinions  were  entirely  conclusive,  no  doubt, 
as  between  parties  litigant,  but  had  no  control  over  the  polit 
ical  sentiments,  rights,  or  actions  of  the  people ;  that  their  ad 
judications  would  be  a  rule  and  a  precedent  in  future  cases  of 
just  the  same  character ;  but,  beyond  that,  should  have  no  effi 
cacy  whatever. 

Gentlemen,  I  will  tell  you  what,  in  confirmation  of  these 
views,  Mr.  Lincoln  says.  In  the  Message  that  has  been  read 
to  you  he  states  exactly  the  same  thing,  with  the  addition  that, 
if  we  were  to  submit  to  the  Supreme  Court  of  the  United  States 
to  decide  for  us  what  is  right  in  our  Government,  and  what  prin 
ciples  should  be  maintained,  and  what  course  the  Administra 
tion  should  adopt,  we  would  be  surrendering  to  the  Supreme 
Court  the  political  power  of  the  nation,  and  would  become  a 
species  of  serfs  and  slaves. 

When  nullification  reared  its  head  within  our  territory,  and 
the  people  of  South  Carolina  claimed  that  an  Act  of  the  Gen 
eral  Government  was  an  aggression  upon  them,  against  which 
they  had  a  right  to  make  physical  resistance,  if  necessary,  the 
parties  of  this  country  were  divided  into  Whigs  and  Democrats. 
They  were  two  formidable  parties.  There  had  not  then  grown 
up  any  of  these  little  schismatic  organizations,  which  are,  in 
these  latter  days,  numerous  as  the  eddies  on  the  biggest  stream. 
They  were  not  the  days  for  certain  clubs  of  professional  politi 
cians,  with  very  imperfect  wardrobes  and  more  imperfect  con 
sciences,  who  sit  in  judgment  on  the  qualifications  of  judicial 
officers,  and  measure  their  fitness  for  office  by  their  capacity  to 
pay  money  to  strikers. 

"  Now,"  said  that  great  party  claiming  to  be  conservative, 
"  South  Carolina  has  no  right  to  resist.  If  she  has  suffered  any 


OF  THE   SCHOONER   SAVANNAH.  269 

wrong — if  the  General  Government  has  attempted  any  aggres 
sion  on  her — let  her  submit  the  whole  matter  to  the  Supreme 
Court  of  the  United  States,  and  let  its  arbitration  be  final." 
Yes ;  and  so  the  cry  continued,  till  it  was  supposed  that  the 
Supreme  Court  of  the  United  States  was  said  to  have  decided 
that  the  owner  of  slave  property  miffht  carry  it  into  the  Terri 
tories.  Then  the  note  was  changed.  Instantly  the  doctrine 
was  reversed,  and  the  Supreme  Court  was  no  longer  the  great, 
solemn,  majestic,  and  omnipotent  arbiter  to  dispose  of  this 
question.  Then  that  Court  became  "  a  convention  of  very  re 
spectable  gentlemen,"  who  took  their  seats  with  black  robes, 
and  who  were  very  competent  to  decide  the  right  of  a  contro 
versy  between  John  Doe  and  Richard  Roe,  but  must  not  lay 
their  hands  on  politics.  Why,  they  talk  about  the  Earl  of 
Warwick  being  a  King-maker ;  but  your  man  who  seats  him 
self  on  the  head  of  a  whisky  barrel,  in  a  corner  grocery  store, 
is  a  greater  King-maker  than  ever  Warwick  was  ;  and  such  a 
man  as  that,  in  his  prerogatives,  is  not  to  be  displaced  by  the 
Supreme  Court  of  the  United  States !  He  may  get  up  a  town 
meeting,  at  which  it  will  be  declared  that  the  doctrine  laid 
down  by  the  Supreme  Court  of  the  United  States  is  all  prepos 
terous  and  absurd,  and  that  the  people  are  not  going  to  submit 
to  that  tribunal. 

There  is  no  recognition,  therefore,  by  this  Administration,  of 
the  idea  that  the  Supreme  Court  of  the  United  States  is  capa 
ble  of  affording  any  relief  in  such  a  case  as  that  which  has  led 
to  the  action  of  the  seceded  States.  And  so,  that  argument 
being  out  of  the  way,  I  ask  you,  I  ask  the  learned  Court,  and 
I  ask  our  opponents,  whether,  under  the  law  of  nations,  as 
expounded,  there  was  any  other  course  left  except  that  which 
the  seceding  States  have  adopted,  assuming  that  any  action 
whatever  was  to  be  taken  ? 

Adjourned  till  Tuesday,  29th  October,  at  11  o'clock  A.  M. 


270  TRIAL    OF   THE   OFFICERS    AND    CREW 


SIXTH   DAY. 

TUESDAY,  Oct.  29th,  1861. 

Mr.  Brady  resumed  his  address,  and  said : 

In  the  same  general  line  of  discussion  which  I  adopted'yes- 
terday,  I  will  refer  you  to  a  striking  passage  from  a  distin 
guished  gentleman,  and,  when  I  have  read  the  extract,  will 
state  from  whom  it  emanated  : 

"Any  people  anywhere,  being  inclined  and  having  the  power,  have  a 
right  to  rise  up  and  shake  off  the  existing  Government,  and  form  a  new  one 
that  suits  them  better.  This  is  a  most  valuable,  a  most  sacred  right — a  right 
which,  we  hope  and  believe,  is  to  liberate  the  world.  Nor  is  this  right  con 
fined  to  cases  in  which  the  whole  people  of  an  existing  Government  may 
choose  to  exercise  it.  Any  portion  of  such  people  that  can,  MAY  REVOLUTION 
IZE  and  make  their  own  of  so  much  of  the  territory  as  they  inhabit.  More 
than  this :  a  majority  of  any  portion  of  such  people  may  revolutionize — put 
ting  down  a  minority  intermingled  with  or  near  about  them  who  may  op 
pose  their  movements.  IT  is  A  QUALITY  OF  REVOLUTIONS  NOT  TO  GO  BY  OLD 

LINES  OR  OLD  LAWS,  BUT  TO  BREAK  UP   BOTH    AND    MAKE   NEW  ONES." — Appendix 

Con.  Globe,  1st  Session  35th  Congress,  p.  94. 

Would  you  suppose,  gentlemen,  that  it  was  an  ardent  South 
Carolina  secessionist  who  declared  that  any  people  may  revo 
lutionize  and  hold  mastery  of  any  territory  which  they  occupy  ? 
Would  you  suppose  that  was  from  Jefferson  Davis,  in  the  Sen 
ate  of  the  United  States  ?  No,  gentlemen ;  it  is  from  Abraham 
Lincoln,  the  President  of  the  United  States,  when  he  was  a 
member  of  Congress,  and  was  delivered  on  the  12th  of  January, 
1848. 

Now,  gentlemen,  I  do  not  think  that  an  intelligent  gentle 
man  born  in  South  Carolina,  Kentucky,  or  Virginia,  and 
educated  by  his  parents  in  a  certain  political  faith,  has  not  as 
much  right  to  adhere  to  it  as  he  has  to  the  religious  faith  in 
which  he  is  brought  up ;  and  if  he  should  happen  so  say  all 
that  is  substantially  claimed  by  these  seceding  States,  he  would 
be  sustained  by  authority  quoted  here,  and  have  the  express 
sanction  of  the  distinguished  and  excellent  gentleman  now  at 
the  head  of  this  nation. 

Let  me  now  cite  to  you  Wheatorfs  International  Law, page 
30,  in  which  he  says,  that  "  sovereignty  is  acquired  by  a  State, 
either  at  the  origin  of  the  civil  society  of  which  it  is  composed, 
or  when  it  separates  itself  from  the  community  of  which  it 
previously  formed  a  part,  and  on  which  it  was  dependent." 
Then  he  says,  that  "CIVIL  WAR  between  the  members  of  the  same 
society  is,  by  the  general  usages  of  nations,  such  a  war  as  en- 


OF    THE    SCHOONER    SAVANNAH.  271 

titles  both  the  contending  parties  to  all  the  rights  of  war  as 
against  each  other,  and  as  against  neutral  nations" 

This,  if  your  honors  please,  seems  to  me  an  answer  to  the 
doctrine  put  forward  in  this  case,  that  the  Judges  are  to  treat 
this  question  in  reference  to  the  seceding  States  as  it  has  been 
viewed  by  the  executive  and  legislative  branches  of  the  Gov 
ernment.  If  it  be  true  that  when  a  state  of  civil  war  exists, 
as  stated  by  Wheaton,  both  the  contending  parties  have  all  the 
rights  of  war  as  against  each  other,  as  well  as  against  neutral 
nations,  then  it  follows  very  clearly  that  the  seceding  States, 
as  well  as  our  own,  have  all  the  rights  of  war ;  and  there  is  no 
such  rule  as  that  they  must  have  those  rights  determined  only 
by  the  executive  or  legislative  branches  of  the  Government, 
or  by  both. 

And  here,  gentlemen,  let  us  refer  to  the  matter  of  BLOCK 
ADE,  which  I  take  to  be  the  highest  evidence  of  a  distinct 
recognition,  by  the  General  Government,  of  a  state  of  war  as 
between  the  United  and  the  Confederate  States.  1  see  no 
escape  from  that  conclusion.  It  is  true  that  a  learned  Judge 
in  New  England,  an  eminent  and  pure  man,  has  determined, 
as  we  see  from  the  newspapers,  that  in  his  judgment  it  is  not  a 
blockade  which  exists,  but  merely  the  exercise  by  the  General 
Government  of  its  authority  over  commerce  and  territory  in  a 
state  of  insurrection — that  it  is  a  mere  police  or  municipal 
regulation.  Well,  gentlemen,  that  is  not  the  view  taken  by 
the  Judges  elsewhere.  Certainly  it  is  not  adopted  in  this  Dis 
trict,  where  prize  cases  have  arisen,  instituted  by  the  Govern 
ment,  which  calls  this  a  blockade  ;  and  I  undertake  to  say  that, 
in  the  history  of  the  human  race,  that  word,  blockade,  never  was 
applied  except  in  a  state  of  war;  and  the  exercise  of  that 
power  never  can  occur  except  in  a  state  of  war,  because,  as  the 
writers  inform  us,  blockade  is  the  right  of  a  belligerent  affect 
ing  a  neutral,  and  ONLY  ALLOWABLE  IN  A  STATE  OF  WAR.  Why 
is  it  that  France  and  England  and  all  the  other  countries  of  the 
world  do  not  attempt  to  send  their  vessels  to  any  of  the  ports 
in  guard  of  which  we  place  armed  vessels  ? 

A  word  more  about  piracy  :  A  pirate  is  an  offender  against 
the  law  of  nations.  He  is  called  in  the  Latin,  and  by  the 
jurists,  the  enemy  of  the  human  race.  Any  nation  can  lay 
hold  of  him  on  the  high  seas,  take  him  to  its  country,  and 
punish  him.  Now,  if  a  ship  of  war — British,  French,  Russian, 
or  of  any  other  nation — should  meet  with  a  piratical  craft,  she 
would  capture  and  condemn  it  in  the  courts  of  her  country, 
and  the  crew  would  suffer  the  punishment  of  pirates.  No  one 
will  dispute  that  proposition.  But  if  such  a  ship  of  war  had  met 
with  the  privateer  Savannah,  even  in  the  very  act  of  cap 
turing  the  Joseph,  would  she  have  captured  the  Savannah,  or 


272  TRIAL  OF  THE  OFFICERS  AND  CREW 

attempted  to  arrest  her  crew  as  pirates  ?  If  not,  does  it  not 
follow,  as  a  necessary  consequence,  that  the  "  Savannah  "  was 
not  engaged  in  piratical  business  ?  and  does  it  not  involve  a 
palpable  absurdity  to  say,  that  a  vessel  on  the  high  seas,  cruis 
ing  under  a  privateer's  commission,  can  be  treated  as  a  pirate  by 
the  power  with  which  it  is  at  war,  and  yet  be  declared  not  a 
pirate  by  all  the  other  powers  of  the  earth  ?  This  must  be  so, 
if  there  is  anything  in  the  idea  that  piracy  is  an  offence  against 
the  law  of  nations. 

There  is  not  a  case  in  our  books  <  where  any  man,  under  a 
commission  emanating  from  any  authority  or  person,  was  ever 
treated  as  a  pirate,  and  so  condemned,  unless  the  actual  intent 
to  steal  was  proved.  In  the  case  of  Aurey  such  was  the  fact, 
as  in  many  other  cases  which  have  been  cited.  And  so  it  seems 
that  if  the  Confederate  States  were  either  an  actual  Government, 
established  in  virtue  of  the  principles  of  right  to  which  I  have 
referred,  or  if  a  Government  de  facto,  as  distinguished  from 
one  having  that  right,  or  if  these  men  believed  mat  the  com 
mission  emanated  from  either  kind  of  Government  was — lawful 
ly  issued — we  claim  that  it  is  impossible  in  law,  and  would  be 
wrong  in  morals,  and  unjust  in  all  its  conseqences,  to  hold  them 
as  pirates,  or  to  treat  them  otherwise  than  as  prisoners  of  war. 
And,  gentlemen,  I  am  sorry  to  say,  or  rather  I  am  glad  to  say, 
that  if  tbey  should  be  acquitted  of  the  crime  of  piracy,  they 
would  yet  remain  as  prisoners  of  war.  The  worst  thing  to  do 
with  them  is  to  hang  them.  By  preserving  their  lives  we  have 
just  their  number  to  exchange  for  prisoners  taken  by  the 
enemy. 

You,  gentlemen,  will  do  your  duty  under  the  law,  whatever 
be  the  consequences.  If  you  have  no  doubt  that  these  men 
have  committed  piracy,  they  should  be  convicted  of  piracy. 
No  threat  of  retaliation  from  any  quarter  should  or  will  influ 
ence  right-minded  men  in  the  disposition  to  be  made  of  cases 
where  they  have  to  give  a  verdict  according  to  their  conscience, 
the  evidence,  and  the  law  of  the  land. 

But  the  fact  of  retaliation,  as  a  danger  that  may  ensue 
from  treating  as  pirates  men  engaged  in  war,  is  referred  to  by 
YATTEL  in  his  treatise  on  the  laws  of  nations.  It  is  one  of  the 
considerations  which  enjoin  on  Courts  and  Governments  the 
duty  of  seeing  that,  when  people  are  prosecuting  civil  war, 
they  shall  enjoy  the  humanities  of  war. 

I  will  now  consider  this  case  under  the  ninth  section  of  the 
Act  of  1790,  which  is  as  follows : 

"  If  any  citizen  shall  commit  any  piracy  or  robbery  aforesaid,  or  any  act 
of  hostility  against  the  United  States,  or  any  of  the  citizens  thereof,  on  the 
high  seas,  under  color  of  any  commission  from  any  foreign  Prince  or  State, 


OF   THE    SCHOONER    SAVANNAH.  •      273 

or  on  pretence  of  authority  from  any  person,  such  offender  shall,  not 
withstanding  the  pretence  of  any  such  authority,  be  deemed,  adjudged,  and 
taken  to  be  a  pirate,  felon,  and  robber,  and,  on  being  thereof  convicted,  shall 
suffer  death." 

Now,  in  the  first  place,  we  say,  as  was  before  urged,  that 
statute  has  no  bearing  whatever  on  the  case  of  the  eight 
foreigners,  and  you  are  to  disregard  them  entirely  in  passing 
upon  all  the  questions  which  this  Act  may  raise ;  and  we 
say  that  it  has  no  bearing  on  the  four  Americans  before 
you,  even  if  it  be  a  valid  Act  and  applicable  to  a  case  of  this 
character,  because,  at  the  time  of  the  acts  charged,  they  were 
citizens  of  another  Government,  owing  it  allegiance,  receiving 
its  protection,  engaged  in  its  service,  and  bound  to  perform 
suck  service.  We  have  been  told  that  allegiance  and  protec 
tion  are  reciprocal.  The  people  of  the  Southern  States  would 
be  placed  in  a  very  extraordinary  condition  if  the  arguments 
of  my  learned  opponent  are  to  prevail.  Look  at  the  citizens 
of  Charleston.  There  are  men  in  that  city  who  love  the  Union, 
among  whom  is  Mr.  PETTIGRLW,  an  able  lawyer,  a  patriot,  and 
a  man  of  great  virtue,  talents,  and  distinction.  If  those  loyal 
people  wanted  to  leave  Charleston  and  come  North,  they  could 
not  do  it.  If  they  felt  inclined  to  utter,  at  this  moment,  their 
sentiments  in  favor  of  reunion  of  the  States,  it  would  be  an 
act  of  folly  and  danger.  They  are  living  in  A  STATE,  under  its 
government  and  jurtsdiction,  and  bound  to  perform  their  duties 
as  citizens.  Can  they  refuse  ?  They  may  be  ordered  into  the 
service  of  the  government — sent  to  sea — enlisted  as  soldiers. 
They  cannot  refuse  to  fight.  If  they  do,  they  make  themselves 
amenable  to  their  own  Judges.  I  refer  to  1st  Hawkins,  PI. 
Crown,  87,  89,  where  it  is  said  : 

"  There  is  a  NECESSITY  that  the  realm  should  have  a  King,  ~by  whom  and  in 
whose  name  the  laws  shall  be  administered;  and  the  King  IN  POSSESSION,  being 
the  only  person  who  either  doth  or  can  administer  those  laws,  MUST  BE  THE  ONLY 
PERSON  who  has  a  right  to  that  obedience  which  is  due  to  him  who  administers 
those  laws;  and  since,  by  virtue  thereof,  he  secures  us  the  safety  of  our  lires, 
liberties,  and  properties,  and  all  the  advantages  of  Government,  he  may  JUSTLY 

CLAIM  RETURNS  OF  DUTY,  ALLEGIANCE,  AND  SUBJECTION." 

And  BLACKSTONE  is  equally  explicit  (4  Blackstone 's  Comm., 
78): 

"When,  therefore,  an  USURPER  is  in- possession,  the  subject  is  excused  and 
justified  in  obeying  and  giving  him  assistance  ;  OTHERWISE,  UNDER  AN  USURPA 
TION,  NO  MAN  could  BE  SAFE,  if  the  lawful  Prince  had  a  right  to  hang  him 
for  obedience  to  the  power  in  being,  a*  the  USURPER  WOULD  CERTAINLY  DO  FOR 

DISOBEDIENCE." 

Sdlhst.  (Coke)  7,  is  to  the  same  point: 

"  The  stat.  11  Henry  VII. ,  ch.  1,  is  declaratory  of  the  law  on  this  subject ; 
and  the  year  booh,  4  Edw.  IV.,  1,  9  Edw.  IV.,  1,  2,  show  that  it  was  always 
the  English  law. 

Our  statute,  or  rather  constitutional  definition,  of  treason, 
18 


274          •  TRIAL    OF   THE   OFFICERS    AND   CREW 

is  a  transcript  of  the  English  statute  of  treason ;  and  it  is  hardly 
necessary  to  cite  2  Story  on  the  Constitution,  sec.  1799,  to  the 
point  that  our  Courts  will  construe  the  Constitution  as  the 
English  law  is  construed  by  the  English  Courts.  And  here  we 
observe  a  marked  difference  between  a  revolt  by  the  subjects 
of  a  single  consolidated  Government  which  is  a  unit,  and 
the  action  of  one  or  more  States  in  a  Confederacy,  or  of  the 

Eeople  dwelling  within  them,  when  such  States  resolve,  as 
tates,  to  recognize  no  sovereignty  or  Government  within  their 
territory  except  that  established  under  their  own  Constitution. 
But  I  insist  upon  it  that  Congress  had  no  power  to  pass  this 
9th  section  of  the  Act  of  1790  ;  that  the  construction  put  upon 
it  by  our  opponents  is  entirely  unwarranted  ;  and  that  it  can 
not  be  applied  to  a  case  like  this.  Your  honors  are  aware  that 
in  The  case  of  Smith,  5  Wheaton,  Mr.  Webster  took  the  ground 
that  the  law  was  not  constitutional,  because  it  did  not  define 
piracy  otherwise  than  by  referring  to  the  law  of  nations.  The 
authority  given  to  Congress  on  that  subject  is  to  define  and 
punish  piracy  and  other  offences  against  the  law  of  nations. 
"To  define  and  punish  piracy"  is  all  of  the  phrase  with  which 
I  have  to  deal.  Now,  you  understand,  gentlemen,  that  there 
is  no  common-law  jurisdiction  of  offences  residing  in  the  United 
States  Courts.  They  can  punish  no  crime  except  by  statute. 
Congress  had  fully  defined  piracy  and  robbery  in  the  eighth  sec 
tion  of  the  Act  of  1790;  and,  having  done  so,  what  power  or 
authority  was  there  in  Congress  to  go  on  and  say  that  some 
thing  else  should  be  called  piracy,  when  the  definition  of  it 
was  complete  ?  Let  me  refer  your  honors  again  to  the  lan 
guage  ot  the  law,  which  furnishes  a  strong  argument  on  this 
subject:  "If  any  citizen  shall  commit  any  piracy  or  robbery 
aforesaid,  or  any  act  of  hostility  against  the  United  States," 
<fec.  Does  not  that  clearly  recognize  and  admit  that  piracy  has 
been  defined  ?  and  can  it  be  pretended  that  Congress,  under 
pretence  of  defining  piracy,  can  provide  that  a  common  assault 
and  battery  on  the  hiah  sea  shall  be  piracy  ?  Is  there  no  lim 
itation  to  that  grant?  AVe  claim  that  its  terms  are  just  as 
much  a  restriction  as  a  delegation  of  power.  It  defines  as  clear 
ly  the  limits  which  the  Government  shall  not  transcend,  as  it 
does  the  area  which  Congress  may  occupy.  You  may  "  define 
piracy  and  punish  it :"  does  this  mean  that  you  can  call  anything 
piracy,  whether  it  be  so  or  not?  Suppose  Congress  passed  an 
Act  providing  that,  if  any  man  on  land  should,  during  a  state 
of  war,  attempt  to  make  reprisals  on  another,  it  should  be  pi 
racy,  punishable  wyith  death :  would  that  be  a  legitimate  exer 
cise  of  the  authority  vested  in  Congiess?  We  claim  that  it 
would  not,  and  that  it  would  be  a  manifest  usurpation  against 
the  true  meaning,  spirit,  and  proper  effect  of  the  Constitution. 
Again,  it  has  been  argued  to  your  honors,  and  we  insist, 


OF   THE    8CHOOM.K    SAVANNAH.  275 

that  this  statute,  if  it  le  operative,  only  relates  to  the  case  of  a 
person  talcing  a  commission  froni  a  FOREIGN  Government  or 
State.  To  say  that  an  act  of  hostility  committed  by  authority 
of  &ny person  whatever — using  the  word  "person"  to  mean  a 
human  being — against  another,  on  the  high  seas,  would  be  pi 
racy,  and  punishable  by  death,  is  a  monstrous  construction  of 
this  Act ;  and  if  I  understood  brother  Evarts,  in  th£  course  of 
the  discnssion  that  took  place  between  him  and  myself,  he  con 
ceded  that  the  case  which  I  suggested,  of  throwing  a  belay- 
ing-pin,  by  order  of  the  Captain  of  one  vessel,  at  the  Captain  of 
another,  on  the  high  seas,  although  an  act  of  hostility  ~by  one 
citizen  against  another,  under  pretence  of  authority  from  a  per 
son,  wonld  not  come  within  the  law ;  yet  this  assault  would  be 
within  the  very  letter  of  the  Act.  Bead  that  law  just  as  it  is, 
and  say,  after  the  words  "  Prince"  and  "  State"  have  been 
used,  what  other  term  is  necessary  or  apposite.  Why,  no 
other,  except  as  in  the  case  of  Anrey,  an  individual  fitting  out 
an  expedition  against  a  foreign  Government,  and  undertaking 
to  grant  commissions ;  or  as  in  the  case  of  James  II.,  who, 
as  shown  by  Mr.  Lord,  was  an  exile  in  a  foreign  land,  having 
no  territory,  no  Government,  and  no  subjects  ;  and  he  was 
treated  in  the  English  Act — from  which  ours  is  taken — as  a 
mere  per  son,  not  to  be  denominated  King.  I  do  not  mean  to 
concede  that  the  case  of  Miranda,  who  fitted  out  the  expedi 
tion  against  Spain,  assisted  by  some  of  our  citizens,  and  grant 
ed  commissions  to  privateers,  wonld  be  a  case  within  the  stat 
ute  of  1790  ;  but  if  it  would,  it  will  not  subserve  the  purposes 
of  the  prosecution  at  all,  or  be  injurious  to  us.  The  word 
"  person,"  in  this  connection,  means  a  person  standing  in  the 
same  relation  to  another  as  a  Prince  or  a  State.  Gentlemen, 
that  this  was  never  intended  to  apply  between  so  many  States  as 
remained  in  the  Union  and  those  that  went  out,  is  a  proposition 
about  which  Mr.  Lord  has  been  heard,  and  I  see  no  answer  to 
his  argument. 

Now,  there  is  a  dilemma  here.  If  the  gentlemen  insist 
that,  in  the  construction  I  have  given,  we  are  right,  and  that 
Mr.  Jeiferson  Davis  or  the  Confederate  States,  in  the  giving  of 
this  commission  or  authority,  are  to  be  regarded  as  a  power  or 
person  within  my  definition,  then  it  is  as  a  foreign  power ;  in 
which  case  Capt.  Baker  is  the  subject  or  citizen  of  that  power, 
and  not  a  citizen  of  the  United  States,  and  not  within  the  Act 
of  1790.  And  if  the  Confederate  States  is  not  a  foreign  power, 
within  the  construction  and  meaning  of  the  Act  of  1790,  then 
there  is  no  violation  of  that  statute  by  Capt.  Baker,  or  any 
one  associated  with  him,  if  it  be  true,  as  I  contend,  that  the 
pretence  of  authority  must  be  of  one  from  a  foreign  source. 
If  they  make  out  that  the  Confederate  States  is  a  foreign 
power,  it  is  because  it  is  a  Government  in  existence ;  and  if  it 


276  TRIAL    OF    THE    OFFICERS    AND   CREW 

be  a  Government  in  existence,  then  its  commission  must  be 
recognized  by  the  law  of  nations. 

JNow,  I  certainly  understood,  from  the  opening  by  the 
learned  District  Attorney,  that  the  prosecution  did  not  rely 
much  on  the  piracy  branch  of  this  case  ;  they  did  not  abandon 
it ;  they  have  never  said  they  would  not  press  a  conviction 
upon  it.  But  the  strong  effort  is  made  to  convict  under  the 
ninth  section  of  the  Act  of  1790,  saying  to  you  of  the  Jury, 
"  All  you  have  to  find  is,  that  Baker  and  three  of  his  asso 
ciates  were  citizens  of  the  United  States ;  that  they  were  on 
the  high  seas ;  and  that,  being  there,  they  committed  an  act  of 
hostility  against  another  citizen  of  the  United  States,  under 
pretence  ol  authority  from  Jefferson  Davis  ;  and,  then,  they  are 
pirates."  I  think  it  would  have  been  a  little  more  magnani 
mous  in  the  Government  not  to  attempt  any  scheme  of  this 
kind.  I  think,  if  it  be  possible  to  drag  these  men,  manacled, 
within  the  construction  of  a  statute  which  exposes  their  lives 
to  danger,  it  is  yet  not  the  right  way  to  deal  with  them.  When 
they  were  captured  they  were  entitled  to  be  treated  either  as 
prisoners  of  war,  or  as  traitors  to  the  Government.  Why  were 
they  not  indicted  for  treason  ? 

Now,  my  learned  friend  said  that  this  indictment  was  drawn 
with  the  utmost  possible  care  and  circumspection,  when  he 
spoke  of  the  averment  that  this  act  of  the  defendants  was  done 
under  pretence  of  the  authority  of  "one  Jefferson  Davis." 
The  pleader  did  not  wish  to  admit,  .by  the  language  of  the 
indictment,  that  it  was  under  pretence  of  any  authority  from 
any  Government  or  Confederate  States.  He  wanted  to  regard 
it  as  the  act  of  a  mere  individual,  who,  although  he  claimed  to 
represent  so-called  States,  was,  after  all,  merely  a  person  sign 
ing  a  paper  on  his  own  account,  and  for  which  he  was  to  take 
the  exclusive  responsibility. 

I  will  refer  your  honors  to  Blackstone,  4  vol.,  p.  72,  where  he 
interprets  this  statute  of  11  and  12  William  111.,  chap.  4,  to  re 
late  to  acts  done  under  color  of  a  commission  from  a  foreign  pow 
er  ;  and  it  was  never  supposed  to  have  meant  anything  else.  In 
1819,  Great  Britain  passed  a  law  making  it  a  crime  for  British 
subjects  to  be  connected  in  any  way  with  the  sending  out  of 
vessels  to  cruise  against  a  power  at  peace  with  England.  I.y 
the  18th  George  //.,  chap.  30,  it  is  made  piracy,  in  time  of  war,  for 
English  subjects  to  commit  hostilities  of  any  kind  against  fellow 
subjects.  How  did  that  act  become  necessary  in  the  legislation 
of  England,  if  the  previous  law  had  already  provided  for  the 
same  thing  ?  That,  certainly,  is  a  question  of  some  importance 
in  this  case.  We  have  statutes  that  punish  citizens  of  the 
United  States,  under  certain  circumstances  when  they  are  en 
gaged  in  privateering  ;  and  there  have  been  trials  and  convic- 


OF   THE    SCHOONER   SAVANNAH.  277 

tions  under  these  statutes,  as  your  honors  will  find  by  referring 
to  Whartorfs  State  Trials' 

We  contend,  therefore,  that  the  ninth  section  of  the  Act  of 
1790,  as  construed  by  our  opponents,  would  be  unconstitutional  ; 
that  it  only  applies,  if  valid,  to  acts  done  under  authority  of  a 
foreign  power  or  person  ;  that  if  Jefferson  Davis  was,  or  repre 
sented,  such  foreign  power,  then  the  defendants  were  subjects 
of  that  power,  not  citizens  of  the  United  States,  and  not  within 
the  Act  ;  if  he  were  not  or  did  not  represent  a  foreign  power, 
the  Act  does  not  apply  to  the  case  ;  and  so,  in  every  view  of 
the  subject,  there  is  no  right  to  convict  any  of  these  men  under 
this  Act. 

I  will  now  cite  some  authorities  on  the  question  of  variance 
made  by  my  friend,  Mr.  Lord,  in  describing  this  commission  as 
a  pretence  of  authority  from  one  Jefferson  Davis.  Certainly, 
in  law,  that  commission  is  the  act  and  authority  of  the  Con 
federate  States.  There  can  be  no  dispute  about  that. 

I  refer  my  learned  opponents  to  Wharfon's  Criminal 
Treatise,  at  pps.  78,  91,  93,  94  and  96,  for  these  two  proposi 
tions  :  In  the  first  place,  that,  where  a  new  offence  is  created 
by  statute,  the  utmost  particularity  is  required,  when  drawing 
the  indictment,  to  set  forth  all  the  statutory  elements  of  the 
offence  ;  and,  in  the  second  place,  what  is  tlius  averred  must 
be  proved  strictly  as  laid.  Well,  it  may  seem  to  you,  gentle 
men,  rather  a  technical  and  immaterial  question,  whether  this 
was  set  out  as  a  pretence  of  authority  from  one  Jefferson  Davis, 
or  from  the  Confederate  States,  —  and  it  is.  But,  nevertheless, 
it  is  a  legal  technicality  ;  and  these  prisoners,  if  it  be  well 
founded,  have  aright  to  the  benefit  of  it.  It  is  very  little  that 
I  have  to  read  from  this  book,  for  the  propositions  are  pointedly 
stated  : 

Page  91.  "  It  is  a  general  rule  that,  in  regard  to  offences  created  by  stat 
utes,  it  is  necessary  that  the  defendant  be  brought  within  all  the  material 
words  of  the  statute  ;  and  nothing  can  be  taken  by  intendment." 

Page  93.  "  Defects  in  the  description  of  a  statutory  offence  will  not  be 
aided  by  a  verdict,  nor  will  the  conclusion  contra  for  mam  statutis  cure  it." 

Page  94.  "  An  indictment  under  the  Stat.  5th  Elizabeth,  which  makes  it 
high  treason  to  clip  round  or  file  any  of  the  coin  of  the  realm  for  wicked 
lucre  or  gain  sake,  —  it  was  necessary  to  charge  the  offence  as  being  committed 
for  wicked  lucre  or  gain  sake,  otherwise  the  indictment  was  bad.  In  another 
case,  an  indictment  on  that  part  of  the  black  act  which  made  it  felony  will 
fully  or  maliciously  to  shoot  at  a  person  in  a  dwelling-house  was  held  to  be 
bad,  because  it  charged  the  offence  to  have  been  done  *  unlawfully  and  mali 
ciously^  without  the  word  '-  " 


That  is  technical  enough,  I  admit,  but  it  emanates  from  high 
authority. 

[Mr.  Brady  read  other  passages  from  Wharton,  and  said]  : 

And,  now,  what  relates  more  particularly  to  the  matter  in 
hand,  is  the  case  of  The  United  States  vs.  Hardiman,  13  Peters, 


278  TRIAL    OF   THE    OFFICERS    AND   CREW 

176.  In  that  case  the  defendant  was  indicted  for  receiving  a 
fifty-dollar  treasury  note,  knowing  it  to  have  been  stolen  out 
of  the  mail  of  the  United  States.  The  indictment  was  under 
the  45th  section  of  the  Post-Office  Law.  The  thing  stolen  was 
described  as  a  fifty-dollar  treasury  note,  bearing  interest  at  one 
per  cent.  ;  and  it  turned  out  to  be  a  treasury  note  which,  al 
though  of  fifty-dollars'  denomination,  bore  interest  at  the  rate 
of  one  mill  per  cent.  •  and  the  Court  held  the  variance  to  be 
fatal.  Now,  we  claim  that  to  describe  the  commission  as 
emanating  from  one  Jefferson  Davis,  when  in  fact  it  emanated 
from  the  Confederate  States,  is  such  a  variance  as  is  here  re 
ferred  to  ;  and,  on  that  ground,  the  indictment  is  not  sustained. 

The  argument  is  made  here,  that,  no  matter  what  publicists 
may  say, — no  matter  what  Courts  of  other  countries  may  de 
clare  as  international  law,  about  the  organization  of  govern 
ment  or  the  creation  of  powers  dejure  or  de  facto, — this  Court 
has  nothing  to  do  with  the  debate  ;  that  your  honors  have  sim 
ply  to  inquire  whether  Mr.  Lincoln,  the  President,  has  said,  or 
whether  Congress  has  said,  a  certain  thing,  and  the  matter 
proceeds  no  further  ;  that  the  citizen  is  not  entitled  to  have  a 
trial,  in  a  Court  of  Justice,  on  the  question  whether,  being  in  a 
state  of  revolt,  a  civil  war  does  in  fact  exist;  and  that  the 
right  of  trial  by  Jury  does  not,  as  to  such  a  question,  exist  at  all. 

It  is  utterly  absurd  to  have  you  here,  gentlemen,  if  all 
that  is  necessary  to  be  shown  against  these  men  is  the  proc 
lamation  by  the  Executive,  and  an  Act  of  Congress  calling 
them  rebels  and  pirates.  Is  there  any  trial  by  Jury  under  such 
circumstances  ?  The  form  of  it  may  exist,  but  not  the  sub 
stance.  It  is  a  mockery.  No,  your  honors  ;  this  question,  as  to 
the  status  of  the  Confederate  States,  is  a  judicial  question, 
when  it  arises  in  a  Court  of  Justice.  It  is  a  juridical  question. 
It  is  one  of  which  Courts  may  take  cognizance — must  take  cog 
nizance — in  view  of  and  with  the  aid  of  that  international  law 
which  is  part  of  the  common  law,  part  of  the  birthright  of  all 
our  citizens,  and  to  the  benefit  and  immunities  as  well  as 
responsibilities  of  which  they  are  subject  and  may  make  claim. 

Otherwise  it  would  lead  to  this  most  extraordinary  conse 
quence,  that,  whenever  any  portion  of  a  State  or  any  State  of  a 
Confederacy,  either  here  or  elsewhere,  revolts,  and  attempts  to 
withdraw  itself  from  the  old  Government,  the  old  Government 
shall  be  the  only  judge  on  earth  to  determine  whether  the 
seceders,  or  the  revolutionists,  or  the  rebels,  shall  be  treated  as 
pirates  or  robbers. 

Would  it  not  be  very  strange  if  our  nation  should  extend 
to  those  who  revolt  in  any  other  country,  when  they  have  at 
tained  a  certain  formidable  position  before  the  world,  the  rights 
and  humanities  of  civil  war :  and  that,  when  any  of  our  own 
people,  under  the  claim  of  right  and  justice,  however  ill-found- 


OF    THE     SCHOONER  SAVANNAH.  279 

ed,  unfortunate,  or  otherwise,  put  themselves  in  an  attitude  of 
hostility  to  the  Government,  they  are  to  be  treated  as  outlaws 
and  enemies  to  the  human  race,  having  no  rights  whatever 
incident  to  humanity  and  growing  out  of  benign  jurisprudence  ? 

Then,  apart  from  all  that  has  been  said,  if  the  United  States 
made  war  upon  the  South,  as  it  certainly  did  by  the  act  of  the 
President,  it  is  one  of  the  propositions  ivhich  these  men  may 
insist  upon,  that  the  States  had  a  right  to  defend  themselves,  to 
make  reprisals,  to  issue  letters  of  marque,  and  that  they  had  all  the 
other  rights  of  warfare.  On  this  point,  Mr.  Larocque  has  given 
copious  and  apposite  arguments  and  citations.  The  Constitu 
tion  itself,  when  it  comes  to  prohibit  a  State  from  making  war 
and  granting  letters  of  marque,  distinctly  recognizes  that  pri 
vateers  are  not  illegal.  It  has  limited  the  prohibition  against 
granting  letters  of  marque,  &c.,  by  saying  that  a  State  may  do 
so  in  the  case  of  invasion,  and  when  the  danger  is  imminent. 

Now,  what  are  the  facts  before  us  here  which  raise  this  as 
a  question  in  the  case  ?  There  was  no  declaration  of  war  by 
our  Government,  and  none  by  the  South  ;  but  at  a  certain  time 
there  was  a  firing  on  an  unarmed  vessel  entering  Charleston 
harbor — the  "  Star  of  the  West."  General  Anderson,  who  was 
in  command  of  Fort  Sumter — whether  acting  under  the  author 
ity  of  the  Government,  or  not,  does  not  very  clearly  appear 
in  the  case — sent  a  communication  to  Governor  Pickens,  to 
the  effect  that,  if  unarmed  vessels  were  to  be  fired  upon,  he 
wished  to  be  informed  of  the  fact,  saying,  "You  have  not  yet 
declared  war  against  the  United  States ;"  and  that,  if  the 
offence  were  repeated,  he  should  open  his  batteries  on  Charles 
ton. 

That  is  the  substance  of  it.  Mr.  Pickens  retorted,  saying, 
substantially,  that  they  would  maintain  their  positions.  The 
next  thing  in  order  is  the  proclamation  by  the  President, 
for  the  organization  of  the  army,  for  the  purpose,  as  he  said,  of 
retaking  our  forts.  When,  therefore,  that  condition  of  things 
had  arrived,  war  was  begun  by  the  United  States  upon  the 
South. 

You  may  say  it  was  not  a  war.  You  may  say  it  was  the 
employment  of  means  to  put  down  an  insurrection.  I  care  not 
for  the  mere  use  of  language.  It  was,  in  effect  and  substance, 
a  war  against  those  States  which  claimed  the  authority  to  hold 
territory  for  themselves,  under  a  separate  and  independent  Gov 
ernment  ;  and  that  would  give  them  the  right  to  oppose  force 
by  force,  unless,  indeed,  the  whole  thing  was  a  tumultuous 
act— a  mere  act  of  treason — and  so  to  be  regarded  in  all  aspects 
of  the  case. 

There  is  a  principle  applicable  to  this  whole  case,  referred 
to  by  MR.  DUKES,  in  his  argument — the  doctrine  of  respondeat 


280  TRIAL    OF   THE   OFFICERS    AND    CREW 

superior,  of  which  he  gave  some  instances.  These  men  may 
go  wholly  free  by  the  law  of  nations,  and  yet  the  State  which, 
in  the  name  of  Jefferson  Davis  or  the  Confederate  States,  issued 
this  commission,  would  be  responsible  to  the  General  Govern 
ment  for  the  consequences.  We  had  a  memorable  instance  of 
this  in  this  State,  some  years  since.  You  will  remember  that  a 
man,  named  McLEOD,  was  charged  with  coming  across  the  lines 
from  Canada  and  setting  fire  to  an  American  steamer.  lie  was 
tried,  and  acquitted  on  the  ground — not  very  complimentary  to 
him — that  he  did  not  do  any  such  thing,  although  he  had  boast 
ed  of  it.  It  was  rather  humiliating  to  be  absolved  of  crime  on 
the  ground  that  the  accused  was  a  liar;  yet  still  that  is  the  his 
tory  of  the  case.  Now,  there  was  a  diplomatic  correspondence 
in  reference  to  this  incident,  as  some  of  you  well  remember. 
Great  Britain  insisted  that  Mr.  McLeod  must  not  be  tried  at 
all ;  that  the  American  Government  had  no  authority  to  take 
cognizance  of  the  act ;  and  that  we  must  look  to  Great  Britain 
for  redress.  Well,  gentlemen,  I  am  sorry  to  say  that  our  Gov 
ernment  has  very  often  acted  like  the  Government  of  England. 
Each  of  us  has  been  quite  willing,  occasionally,  to  swoop  down 
on  an  inferior  power,  as  the  vulture  on  its  prey  ;  but,  whenever 
there  was  a  possibility  of  conflict  with  a  power  equal  to  either, 
a  great  deal  of  caution  and  reserve  has  been  evinced.  We  have 
been  for  years — almost  from  the  foundation  of  our  Govern 
ment — truckling  to  British  ideas,  British  principles,  British  feel 
ings,  and  British  apprehensions,  in  a  manner  which  has  not 
done  us  any  honor ;  and  we  see  to-day  what  reward  we  are  en 
joying  for  it.  There  has  not  been  a  public  speaker  in  England 
who  has  ever  designated  us,  for  a  long  period,  by  any  other 
name  than  that  of  the  Anglo-Saxon  race — a  designation  which 
includes  but  one  element  of  even  the  race  which  exists  in  the 
British  Islands,  omitting  the  gentle,  noble,  and  effective  traits 
imported  into  it  by  the  Normans,  and  excluding  those  country 
men  of  my  ancestors  who  do  not  like  to  be  outside  when  there 
is  anything  good  going  on  within.  What  said  our  Government 
to  that?  I  understand  that  they  distinctly  admitted  that  McLeod 
was  not  amenable  to  our  jurisdiction;  but  the  State  of  New 
York  held  on,  in  virtue  of  its  jurisdiction  and  sovereignty,  and 
Mr.  McLeod  had  to  be  tried,  and  was  tried  and  acquitted. 
There  the  principle  or  respondeat  superior  was  acknowledged 
by  our  Government;  and  I  believe  that  is  the  policy  upon 
which  it  has  acted  on  every  occasion  when  the  case  arose. 

Gentlemen,  I  will  detain  you  but  a  few  moments  longer.  I 
have  endeavored  to  show,  in  the  first  place,  that  these  men 
cannot  be  convicted  of  piracy,  because  they  had  not  the  intent 
to  steal,  essential  to  the  commission  of  that  offence,  and  that 
you  are  the  ju<lges  whether  that  intent  did  or  did  not  exist.. 


OF  THE   SCHOONER   SAVANNAH.  281 

If  it  did  not,  then  the  accused  men  are  entitled  to  acquittal 
on  that  ground.  It'  the  Act  of  1790  be  constitutional,  and 
if  it  can  be  construed  to  extend  to  a  case  like  this,  then  eight 
of  the  prisoners  are  to  be  discharged — being  foreigners,  not 
naturalized ;  and  the  other  four,  also — having  acted  under  a 
commission  issued  in  good  faith  by  a  Government  which 
claimed  to  have  existence,  acted  upon  in  good  faith  by  tb em- 
selves,  and  with  the  belief  that  they  were  not  committing  any 
lawless  act  of  aggression.  In  this  connection  I  hold  it  to  be 
immaterial  whether  the  Confederate  Government  was  one  of 
right,  established  on  sufficient  authority  according  to  the  law 
of  nations,  and  to  be  recognized  as  such,  or  whether  it  was 
merely  a  Government  in  fact.  We  claim,  beyond  all  that,  and 
apart  from  the  question  of  Government  in  law  or  Government 
in  fact,  that  there  exists  a  state  of  civil  war ;  which  entitles 
these  defendants  to  be  treated  in  every  other  manner  than  as 
pirates;  which  may  have  rendered  them  amenable  to  the  dan 
ger  of  being  regarded  as  prisoners  of  war,  but  which  has  made 
it  impossible  for  them  to  be  ever  dealt  with  as  felons.  I  am 
sorry  that  it  has  become  necessary  in  this  discussion  to  open 
subjects  for  debate,  any  inquiry  about  which,  at  this  particular 
juncture  in  our  history,  is  not  likely  to  be  attended  with  any 
great  advantage.  But,  like  my  brethren  for  the  defence,  I 
have  endeavored  to  state  freely,  fearlessly,  frankly  and  correct 
ly,  the  positions  on  which  the  defendants  have  a  right  to  rely 
before  the  Court  and  before  you.  It  would  have  been  much 
more  acceptable  to  my  feelings,  as  a  citizen ,  if  we  had  been 
spared  the  performance  of  any  such  duty.  But,  gentlemen,  it 
is  not  our  fault.  The  advocate  is  of  very  little  use  in  the  days 
of  prosperity  and  peace,  in  the  periods  of  repose,  in  protect 
ing  your  property,  or  aiding  you  to  recover  your  rights  of 
a  civil  nature.  It  is  only  when  public  opinion,  or  the  strong 
power  of  Government,  the  formidable  array  of  influence,  the 
force  of  a  nation,  or  the  fury  of  a  multitude,  is  directed  against 
you,  that  the  advocate  is  of  any  use.  Many  years  ago,  while 
we  were  yet  Colonies  of  Great  Britain,  there  occurred  on  this 
island  what  is  known  as  the  famous  negro  insurrection, — the 
result  of  an  idle  story,  told  by  a  worthless  person,  and  yet 
leading  to  such  an  inflammation  of  the  public  mind  that  all 
the  lawyers  who  then  practiced  at  the  bar  of  New  York  (and 
it  is  the  greatest  stigma  on  our  profession  of  which  the  world 
can  furnish  an  example)  refused  to  defend  the  accused  parties. 
One  of  them  was  a  poor  priest,  of,  I  believe,  foreign  origin. 
The  consequence  was,  that  numerous  convictions  took  place,  and 
a  great  many  executions.  And  yet  all  mankind  is  perfectly 
satisfied  that  there  never  was  a  more  unfounded  rumor — never 
a  more  idle  tale — and  that  judicial  murders  were  never  perpe- 


282  TRIAL    OF   THE    OFFICERS   AND    CREW 

trated  on  the  face  of  the  earth  more  intolerable,  more  inexcus 
able,  more  without  palliation.  How  different  was  it  in  Boston, 
at  the  time  of  what  was  called  the  massacre  of  Massachusetts 
subjects  by  British  forces  !  The  soldiers,  on  being  indicted, 
sought  for  counsel ;  and  they  found  two  men,  of  great  emi 
nence  in  the  profession,  to  act  for  them.  One  of  them  was 
Mr.  Adams,  and  the  other  Mr.  Quincy.  The  father  of  Mr. 
Quincy  addressed  a  letter,  imploring  him,  on  his  allegiance  as 
a  son,  and  from  affection  and  duty  toward  him,  not  to  under 
take  the  defence  of  these  men.  The  son  wrote  back  a  response, 
recognizing,  as  he  truly  felt,  all  the  filial  affection  which  he 
owed  to  that  honored  parent,  but,  at  the  same  time,  taking  the 
high  and  appropriate  ground  that  he  must  discharge  his  duty 
as  an  advocate,  according  to  the  rules  of  his  profession  and  the 
obligation  of  his  official  oath,  whatever  might  be  the  result  of 
his  course. 

The  struggles,  in  the  history  of  the  world,  to  have,  in  crimi 
nal  trials,  an  honest  judiciary,  a  fearless  jury,  and  a  faithful 
advocate,  disclose  a  great  deal  of  wrong  and  suffering  inflicted 
on  advocates  silenced  by  force,  trembling  at  the  bar  where 
they  ought  to  be  utterly  immovable  in  the  discharge  of 
their  duty — on  juries  fined,  and  imprisoned,  and  kept  lying 
in  dungeons  for  years,  because  they  dared,  in  State  prosecu 
tions,  to  find  verdicts  against  the  direction  of  the  Court.  The 
provisions  of  our  own  Constitution,  which  secure  to  men  trial 
by  jury  and  all  the  rights  incident  to  that  sacred  and  invalu 
able  privilege,  are  the  history  of  wrong  against  which  those 
provisions  are  intended  to  guard  in  the  future.  This  trial,  gen 
tlemen,  furnishes  a  brilliant  illustration  of  the  beneficial  results 
of  all  this  care.  Nothing  could  be  fairer  than  the  trial  which 
these  prisoners  have  had ;  nothing  more  admirable  than  the 
attention  which  you  have  given  to  every  proceeding  in  this 
case.  I  know  all  the  gentlemen  on  that  Jury  well  enough  to 
be  perfectly  certain  that  whatever  verdict  they  render  will  be 
given  without  fear  or  favor,  on  the  law  of  the  land,  as  they 
shall  be  informed  it  does  exist,  on  a  calm  and  patient  review  of 
the  testimony,  with  a  due  sympathy  for  the  accused,  and  yet 
with  a  proper  respect  for  the  Government,  so  that  the  law  shall 
be  satisfied  and  individual  right  protected.  But,  gentlemen,  I 
do  believe  most  sincerely  that,  unless  we  have  deceived  our 
selves  in  regard  to  the  law  of  the  land,  I  have  a  right  to  invoke 
your  protection  for  these  men.  The  bodily  presence,  if  it  could 
be  secured,  of  those  who  have  been  here  in  spirit  by  their  lan 
guage,  attending  on  this  debate  and  hovering  about  these  men 
to  furnish  them  protection — Lee,  and  Hamilton,  and  Adams, 
and  Washington,  and  Jefferson,  all  whose  spirits  enter  into  the 
principles  for  which  we  contend — would  plead  in  their  behalf. 


OF   THE   SCHOONER   SAVANNAH.  283 

I  do  wish  that  it  were  within  the  power  of  men,  invoking  the 
great  Ruler  of  the  Universe,  to  bid  these  doors  open  and  to  let 
the  Revolutionary  Sages  to  whom  I  have  referred,  and  a  Suin- 
ter,  a  Moultrie,  a  Marion,  a  Greene,  a  Putnam,  and  the  other 
distinguished  men  who  fought  for  our  privileges  and  rights  in 
the  days  of  old,  march  in  here  and  look  at  this  trial.  There  is 
not  a  man  of  them  who  would  not  say  to  you  that  you  should 
remember,  in  regard  to  each  of  these  prisoners,  as  if  you  were 
his  father,  the  history  of  Abraham  when  he  went  to  sacrifice 
his  son  Isaac  on  the  mount — the  spirit  of  American  liberty, 
the  principles  of  American  jurisprudence,  and  the  dictates  of 
humanity,  constituting  themselves  another  Angel  of  the  Lord, 
and  saying  to  you,  when  the  immolation  was  threatened, 
"  Lay  not  your  hand  upon  him."  (Manifestations  of  applause 
in  Court.) 


ARGUMENT  OF  WILLIAM  M.  EVARTS,  ESQ.,  FOR 
THE  PROSECUTION. 

May  it  please  your  Honors,  and  Gentlemen  of  the  Jury  : 

A  trial  in  a  Court  of  Justice  is  a  trial  of  many  things  besides 
the  prisoners  at  the  bar.  It  is  a  trial  of  the  strength  of  the  laws, 
of  the  power  of  the  Government,  of  the  duty  of  the  citizen,  of 
the  fidelity  to  conscience  and  the  intelligence  of  the  Jury.  It  is 
a  trial  of  those  great  principles  of  faith,  of  duty,  of  law,  of  civil 
society,  that  distinguish  the  condition  of  civilization  from  that 
of  barbarism.  I  know  no  better  instance  of  the  distinction  be 
tween  a  civilized,  instructed,  Christian  people,  and  a  rude  and 
barbarous  nation,  than  that  which  is  shown  in  the  assertions  of 
right  where  might  and  violence  and  the  rage  of  passion  in 
physical  contest  determine  everything,  and  this  last  sober,  dis 
creet,  patient,  intelligent,  authorized,  faithful,  scrupulous,  con 
scientious  investigation,  under  the  lights  of  all  that  intelligence 
with  which  God  has  favored  any  of  us  ;  under  that  instruction 
which  belongs  to  the  learned  and  accredited  expounders  of  the 
law  of  an  established  free  Government ;  under  the  aid  of,  and 
yet  not  misled  by,  the  genius  or  eloquence  of  advocates  on  either 
side. 

But,  after  all,  the  controlling  dominion  of  duty  to  the  men 
before  you  in  the  persons  of  the  prisoners,  to  the  whole  com 
munity  around  you,  and  to  the  great  nation  for  which  you  now 
discharge  here  a  vital  function  for  its  permanence  and  its  safe- 


284:  TRIAL    OF   THE    OFFICERS   AND    CREW 

ty, — your  duty  to  the  laws  and  the  Government  of  your  coun 
try  (which,  giving  its  protection,  requires  your  allegiance,  and 
finds  its  last  and  final  resting-place,  both  here  and  in  England,  in 
the  verdicts  of  Juries), — your  duty  to  yourselves, — requires  you 
to  recognize  yourselves  not  only  as  members  of  civil  society, 
but  as  children  of  the  "  Father  of  an  Infinite  Majesty,"  and 
amenable  to  His  last  judgment  for  your  acts.  Can  any  of  us, 
then,  fail  to  feel,  even  more  fully  than  we  can  express,  that 
sympathies,  affections,  passions,  sentiments,  prejudices,  hopes, 
fears,  feelings  and  responsibilities  of  others  than  ourselves  are 
banished  at  once  and  forever,  as  we  enter  the  threshold  of  such 
an  inquiry  as  this,  and  never  return  to  us  until  we  have  passed 
from  this  sacred  precinct,  and,  with  our  hands  on  our  breasts 
and  our  eyes  on  the  ground,  can  humbly  hope  that  we  have  done 
our  duty  and  our  whole  duty  ? 

Something  was  said  to  you,  gentlemen  of  the  Jury,  of 
the  unwonted  circumstances  of  the  prosecution,  by  the  learned 
counsel  who,  many  days  ago,  and  with  an  impressiveness  that 
has  not  yet  passed  away  from  your  memory,  opened  on  behalf 
of  the  prisoners  the  course  of  this  defence. 

He  has  said  to  you  that  the  number  of  those  whose  fate,  for 
life  or  for  death,  hangs  on  your  verdict,  is  equal  to  your  own — 
hinting  a  ready  suggestion  that  that  divided  responsibility  by 
which  twelve  men  may  sometimes  shelter  themselves,  in  weigh 
ing  in  the  balance  the  life  of  a  single  man,  is  not  yours.  Gen 
tlemen,  let  us  understand  how  much  of  force  and  effect  there 
is  in  the  suggestion,  and  how  truly  and  to  what  extent  the 
responsibility  of  a  Jury  may  be  said  to  include  this  issue  of 
life  and  death.  In  the  first  place,  as  Jurymen,  you  have  no 
share  or  responsibility  in  the  wisdom  or  the  justice  of  those 
laws  which  you  are  called  upon  to  administer.  If  there  be 
defects  in  them — if  they  have  something  of  that  force  and 
severity  which  is  necessary  for  the  maintenance  of  Govern 
ment  arid  the  protection  of  peace  and  property,  and  of  life  on  the 
high  seas — you  have  had  no  share  in  their  enactment,  and  have 
no  charge,  at  your  hands,  of  their  enforcement.  In  the  next 
place,  you  have  no  responsibility  of  any  kind  in  regard  to  the 
discretion  of  the  representatives  of  this  Government  in  the 
course  which  they  choose  to  take,  as  to  whether  they  will  prose 
cute  or  leave  unprosecuted.  You  do  not,  within  the  limits  of 
the  inquiry  presented  to  you,  dispose  of  the  question,  why 
others  have  not  been  presented  to  you;  nor  may  that  which 
has  been  done  in  a  case  not*  before  you,  serve  as  a  guide  for 
the  subject  submitted  to  your  consideration.  So,  too,  you  have 
no  responsibility  of  any  kind  concerning  the  course  or  views 
of  the  law  which  this  tribunal  may  give  for  your  guidance. 
The  Court  does  not  make  the  law,  but  Congress  does.  The 


OF   THE    SCHOONER    SAVANNAH.  285 

Court  declares  the  law  as  enacted  by  the  Government,  and  the 
Jury  find  the  facts— giving  every  scrutiny,  every  patient  inves 
tigation,  every  favor  for  life,  and  every  reasonable  doubt  as  to 
the  facts,  to  the  prisoners.  Having  disposed  of  that  duty,  as 
sober,  intelligent  and  faithful  men,  graduating  your  attention 
only  by  the  gravity  of  the  inquiry,  you  have  no  further  respon 
sibility.  But  I  need  not  say  to  you,  gentlemen,  that  if  any 
civilized  Government  is  to  have  control  of  the  subject  of  piracy— 
if  pirates  are  to  be  brought  within  the  jurisdiction  of  the 
criminal  law — the  very  nature  of  the  crime  involves  the  fact 
that  its  successful  prosecution  necessarily  requires  that  consid 
erable  numbers  shall  be  engaged  in  it.  I  am  quite  certain 
that,  if  my  learned  friends  had  found  in  the  circumstances  of 
this  case  nothing  which  removed  it  out  of  the  category  of  the 
heinous  crime  of  private  plunder  at  sea,  exposing  property  and 
life,  and  breaking  up  commerce,  they  would  have  found 
nothing  in  the  fact  that  a  ship's  crew  was  brought  in  for  trial, 
and  that  the  number  of  that  crew  amounted  to  twelve  men, 
that  should  be  pressed  to  the  disturbance  of  your  serene  judg 
ment,  in  any  disposition  of  the  case.  JNrow,  gentlemen,  let  us 
look  a  little  into  the  nature  of  the  crime,  and  into  the  condition 
of  the  law. 

The  penalty  of  the  crime  of  piracy  or  robbery  at  sea  stands 
on  our  statute  books  heavier  than  the  penalty  assigned  for  a 
similar  crime  committed  on  land — which  is,  in  fact,  similar, 
so  far  as  concerns  its  being  an  act  of  depredation.  It  may  be 
said,  and  it  is  often  argued,  that,  when  the  guilt  of  two  offences 
is  equal,  society  transcends  its  right  and  duty  when  it  draws  a 
distinction  in  its  punishments  ;  and  it  may  be  said,  as  has  been 
fully  argued  to  you — at  least,  by  implication,  in  the  course  of 
this  case — that  the  whole  duty  and  the  whole  responsibility  of 
civil  Governments,  in  the  administration  of  criminal  law  and 
the  punishment  of  crime,  has  to  do  with  retributive  vengeance, 
as  it  were,  on  the  moral  guilt  of  the  prisoner.  Now,  gentle 
men,  I  need  not  say  to  you,  who  are  experienced  at  least  in  the 
common  inquiries  concerning  Governments  and  their  duties, 
that,  as  a  mere  naked  and  separate  consideration  for  punishing 
moral  guilt,  Government  leaves,  or  should  leave,  vengeance 
where  it  belongs — to  Him  who  searches  the  heart  and  punishes 
according  to  its  secret  intents — drawing  no  distinction  between 
the  wicked  purpose  which  fully  plans,  and  the  final  act  which 
executes  that  purpose.  The  great,  the  main  duty — the  great, 
the  main  right — of  civil  society,  in  the  exercise  of  its  dominion 
over  the  liberties,  lives,  and  property  of  its  subjects,  is  the  good 
of  the  public,  in  the  prevention,  the  check,  the  discouragement, 
the  suppression  of  crime.  And  I  am  sure  that  there  is  scarcely 
one  of  us  who,  if  guilt,  if  fault,  if  vice  could  be  left  to  the 


286  TRIAL    OF    THE  .OFFICERS    AND   CREW 

punishment  of  conscience  and  the  responsibility  of  the  last  and 
great  assize,  without  prejudice  to  society,  without  injury  to  the 
good  of  others,  without,  indeed,  being  a  danger  and  a  destruc 
tion  to  all  the  peace,  the  happiness,  and  the  safety  of 'commu 
nities,  would  not  readily  lay  aside  all  his  share  in  the  vindictive 
punishments  of  guilty  men.  But  society,  framed  in  the  form 
and  for  the  purposes  of  Government,  finds,  alas !  that  this  tri 
bunal  of  conscience,  and  this  last  and  future  accountability  of 
another  world,  is  inadequate  to  its  protection  against  wicked 
ness  and  crime  in  this. 

You  will  find,  therefore,  in  all,  even  the  most  enlightened 
and  most  humane  codes  of  laws,  that  some  necessary  attention 
is  paid  to  the  predominant  interest  which  society  has  in  pre 
venting  crime.  The  very  great  difficulty  of  detecting  it,  the 
circumstances  of  secrecy,  and  the  chances  of  escape  on  the 
part  of  the  criminal,  are  considerations  which  enter  into  the 
distribution  of  its  penalties.  You  will  find,  in  a  highly  com 
mercial  community,  like  that  of  England,  and  to  some  extent 
— although,  I  am  glad  to  say,  with  much  less  severity — in  our 
own,  which  is  also  a  highly  commercial  community,  that 
frauds  against  property,  frauds  against  trade,  frauds  in  the 
nature  of  counterfeiting  and  forgery,  and  all  those  peaceful  and 
not  violent  but  yet  pernicious  interferences  with  the  health  and 
necessary  activity  of  our  every-day  life,  require  the  infliction 
of  severe  penalties  for  what,  when  you  take  up  the  particular 
elements  of  the  crime,  seems  to  have  but  little  of  the  force, 
and  but  little  of  the  depth  of  a  serious  moral  delinquency. 

The  severity  of  the  penalties  for  passing  counterfeit  money 
are  inflicted  upon  the  poor  and  ignorant  who,  in  so  small  a 
matter  as  a  coin  of  slight  value,  knowingly  and  intelligently, 
under  even  the  strongest  impulses  of  poverty,  are  engaged  in 
the  offence.  Now,  therefore,  when  commercial  nations  have 
been  brought  to  the  consideration  of  what  their  enactments  on 
the  subject  of  piracy  shall  be,  they  have  taken  into  account 
that  the  very  offence  itself  requires  that  its  commission  should 
be  outside  of  the  active  and  efficient  protection  of  civil  society 
— that  the  commission  of  the  crime  involves,  on  the  part  of  the 
criminals,  a  fixed,  deliberate  determination  and  preparation — 
and  that  the  circumstances  under  which  the  victims,  either  in 
respect  of  their  property  or  of  their  lives,  are  exposed  to  these 
aggressions,  are  such  as  to  make  it  a  part  of  the  probable 
course  of  the  crime,  that  the  most  serious  evils  and  the  deep 
est  wounds  may  be  inflicted.  Now,  when  a  crime,  not  con 
demned  in  ethics  or  humanity,  and  which  the  positive  enact 
ments  of  the  law  have  made  highly  penal,  yet  contains  within 
itself  circumstances  that  appeal  very  strongly  to  whatever  au 
thority  or  magistrate  has  rightful  control  of  the  subject  for  a 


OF   THE    SCHOONER    SAVANNAH.  287 

special  exemption,  and  special  remission,  and  special  concession 
from  the  penalty  of  the  law,  where  and  upon  what  principles 
does  a  wise  and  just,  a  humane  and  benignant  Government,  dis 
pose  of  that  question  2  I  agree  that,  if  crimes  which  the  good  of 
society  requires  to  be  subjected  to  harsh  penalties,  must  stand, 
always  and  irrevocably,  upon  the  mere  behest  of  judicial 
sentence,  there  would  be  found  an  oppression  and  a  cruelty  in 
some  respects,  that  a  community  having  a  conscientious  adher 
ence  to  right  and  humanity  would  scarcely  tolerate.  Where, 
then,  does  it  wisely  bestow  all  the  responsibility,  and  give  all 
the  power  that  belongs  to  this  adjustment,  according  to  the 
particular  circumstances  of  the  moral  and  personal  guilt,  which 
must  be  necessary,  and  is  always  conceded  ?  Why,  confessedly, 
to  the  pardoning  power,  alluded  to  on  one  side  or  the  other — 
though  chiefly  on  the  part  of  the  prisoners'  counsel — in  the 
course  of  this  trial.  Now,  you  will  perceive,  at  once,  what  the 
difference  is  between  a  Court,  or  a  Jury,  or  a  public  prosecuting 
officer,  yielding  to  particular  circumstances  of  actual  or  of 
general  qualification  of  a  crime  charged, — so  that  the  law  shall 
be  thwarted,  and  the  certainty  and  directness  of  judicial  trial 
and  sentence  be  made  the  sport  of  sympathy,  or  of  casual  or 
personal  influences, — and  placing  the  pardoning  power  where 
it  shall  be  governed  by  the  particular  circumstances  of  each 
case,  so  that  its  exercise  shall  have  no  influence  in  breaking 
down  the  authority  of  law,  or  in  disturbing  the  certainty,  di 
rectness,  and  completeness  of  judicial  rules.  For,  it  is  the 
very  nature  of  a  pardon, — committed  to  the  Chief  Magistrate 
of  the  Federal  Union  in  cases  of  which  this  Court  has  juris 
diction,  and  to  the  Chief  Magistrate  of  every  State  in  the 
Union  in  cases  of  which  the  State  tribunals  take  cognizance, — 
that  it  is  a  recognition  of  the  law,  and  of  the  sentence  of  the 
law,  and  leaves  the  laws  undisturbed,  the  rules  for  the  guid 
ance  of  men  unaffected,  the  power  and  strength  of  the  Gov 
ernment  un weakened,  the  force  of  the  judiciary  unparalyzed, 
and  yet  disposes  of  each  case  in  a  way  that  is  just,  or,  if  not 
just,  is  humane  and  clement,  where  the  pardon  is  exercised. 

Now,  gentlemen,  I  shall  say  nothing  more  on  the  subject 
of  pardon.  It  is  a  thing  with  which  1  have  nothing  to  do — 
with  which  this  learned  Court  has  nothing  to  do — with  which 
you,  as  Jurymen,  have  nothing  to  do — beyond  the  fact  that  this 
beneficent  Government  of  ours  has  not  omitted  from  its  ar 
rangement,  in  the  administration  of  its  penal  laws,  this  divine 
attribute  of  mercy. 

Now,  there  being  the  crime  of  piracy  or  robbery  on  the 
high  seas,  which  the  interests  of  society,  the  protection  of 
property  and  of  life,  the  maintenance  of  commerce,  oblige 
every  State  and  every  nation,  like  ours,  to  condemn — what  are 


288  TRIAL   OF    THE    OFFICERS    AND   CREW 

the  circumstances,  what  are  the  acts,  that,  in  view  of  the  law, 
amount  to  piracy  ?  You  will  understand  me  that,  for  the  pres 
ent,  I  entirely  exclude  from  your  consideration  any  of  the  par 
ticular  circumstances  which  are  supposed  to  give  to  the  actual 
crime  perpetrated  a  public  character,  lifting  it  out  of  the  penal 
law  that  you  administer,  and  out  of  the  region  of  private 
crime,  into  a  field  of  quite  different  considerations.  They  are, 
undoubtedly,  that  the  act  done  shall  be  with  intent  of  de 
priving  the  person  who  is  in  possession  of  property,  as  its 
owner,  or  as  the  representative  of  that  owner,  of  that  property. 
That  is  what  is  meant  by  the  Latin  phrase,  with  which  you  are 
quite  as  familiar  now,  at  least,  as  I,  animo  furandi — with  the 
intention  of  despoiling  the  owner  of  that  which  belongs  to  him. 
And,  to  make  up  the  crime  of  robbery  on  land,  in  distinction 
from  larceny  or  theft,  as  we  generally  call  it,  (though  theft, 
perhaps,  includes  all  the  variety  of  crime  by  which  the  prop 
erty  of  another  is  taken  against  his  will,)  robbery  includes, 
and  piracy,  being  robbery  at  sea,  includes,  the  idea  that  it  is 
done  with  the  application,  or  the  threat,  or  the  presence  of 
force.  There  must  be  actual  violence,  or  the  presence  and  ex 
hibition  of  power  and  intent  to  use  violence,  which  produces 
the  surrender  and  delivery  of  the  property.  Such  are  the 
ingredients  of  robbery  and  piracy.  And,  gentlemen,  these  two 
ingredients  are  all;  and  you  must  rob  one  or  the  other  of  them 
of  this,  their  poison,  or  the  crime  is  completely  proved,  when 
the  fact  of  the  spoliation,  with  these  ingredients,  shall  have 
been  proved.  The  use  that  the  robber  or  the  pirate  in 
tends  to  make  of  the  property,  or  the  justification  which  he 
thinks  he  has  by  way  of  retaliation,  by  way  of  injury,  by  way 
of  provocation,  by  way  of  any  other  occasion  or  motive  that 
seems  justifiable  to  his  own  conscience  and  his  own  obedience 
to  any  form  whatever  of  the  higher  law,  has  nothing  to  do  with 
the  completeness  of  the  crime,  unless  it  come  to  what  has  been 
adverted  to  by  the  learned  counsel,  and  displayed  before  you 
in  citations  from  the  law-books — to  an  honest,  however  much 
it  may  be  a  mistaken  and  baseless,  idea  that  the  property  is 
really  the  property  of  the  accused  robber,  of  which  he  is  re 
possessing  himself  from  the  party  against  whom  he  makes  the 
aggression. 

Now,  unless,  in  the  case  proved  of  piracy,  or  robbery  on 
land,  there  be  some  foundation  for  the  suggestion  that  the  will 
ful  and  intentional  act  of  depriving,  a  party  of  his  property- 
rests  upon  a  claim  of  the  robber,  or  the  pirate,  that  it  is  his 
own  property  (however  baseless  may  be  the  claim),  you  cannot 
avoid,  you  cannot  defeat,  the  criminality  of  the  act  of  robbery, 
within  the  intention  of  the  law,  by  showing  that  the  robber  or 
the  pirate  had,  in  the  protection  of  his  own  conscience,  and  in 


OF    THE    SCHOONER    SAVANNAH.  289 

the  government  of  his  own  conduct,  certain  opinions  or  views 
that  made  it  right  for  him  to  execute  that  purpose.  Thus,  for 
instance,  take  a  case  of  morals :  A  certain  sect  of  political 
philosophers  have  this  proposition  as  a  basis  of  all  their  reason 
ing  on  the  subject  of  property, — that  is,  that  property,  the  no 
tion  of  separate  property  in  anything,  as  belonging  to  anybody, 
is  theft ;  that  the  very  notion  that  I  can  own  "any thins:,  what 
ever  it  may  be,  and  exclude  other  people  from  the  enjoyment 
of  it,  is  a  theft  made  by  me,  a  wrongful  appropriation,  when 
all  the  good  things  in  this  world,  in  the  intention  of  Providence, 
were  designed  for  the  equal  enjoyment  of  all  the  human  race. 
Well,  now,  a  person  possessed  of  that  notion  of  political  econ 
omy  and  of  the  moral. rights  and  duties  of  men,  might  seek  to 
avail  himself  of  property  owned  and  enjoyed  by  another,  on 
the  theory  that  the  person  in  possession  of  it  was  the  original 
thief,  and  that  he  was  entitled  to  share  it.  I  need  not  say  to 
you.  that  all  these  ideas  and  considerations  have  nothing  what 
ever  to  do  with  the  consideration  of  the  moral  intent  with 
which  a  person  is  despoiled  of  his  property. 

Now,  with  regard  to  force,  I  do  not  understand  that  my 
learned  friends  really  make  any  question,  seriously,  upon  the 
general  principle  of  what  force  is,  or  upon  the  facts  of  this 
case,  that  this  seizure  of  the  Joseph  by  the  Savannah  had 
enough  of  force, — the  threat,  the  presence,  and  exhibition  of 
power, — and  of  the  intent  to  use  it,  to  make  the  capture  one  of 
force,  if  the  other  considerations  which  are  relied  upon  do 
not  lift  it  out  of  that  catalogue  of  crime. 

It  is  true  that  the  learned  counsel  who  last  addressed  you 
seemed  to  intimate,  in  some  of  his  remark?,  near  the  close  of 
his  very  able  and  eloquent  and  interesting  address,  that 
there  was  not  any  force  about  it,  that  the  master  of  the 
Joseph  was  not  threatened,  that  there  was  no  evidence  that 
the  cannon  was  even  loaded,  and  that  it  never  had  been  fired 
off.  Well,  gentlemen,  the  very  illustration  which  he  used 
of  what  would  be  a  complete  robbery  on  land, — the  aggressor 
possessing  a  pistol,  and  asking,  in  the  politest  manner,  tor  your 
money, — relieves  me  from  arguing  that  you  must  fire  either  a 
cannon  or  a  pistol,  before  you  have  evidence  of  force.  If  our 
rights  stand  on  that  proposition,  that  when  a  pistol  is  presented 
at  our  breast,  and  we  surrender  our  money,  we  must  wait  for 
the  pistol  to  be  fired  before  the  crime  is  completed,  you  will 
see  that  the  terrors  of  the  crime  of  robbery  do  not  go  very  far 
towards  protecting  property  or  person,  which  is  the  object 
of  it. 

When,  gentlemen,  the  Government,  within  a  statute  which, 
in  the  judgment  of  the  Court,  shall  be  pronounced  as  being 
lawfully  enacted  under  the  Constitution  of  the  United  States,  has 
19 


290  TRIAL   OF    THE    OFFICERS    AND   CREW 

completed  the  proof  of  the  circumstances  of  the  crime  charged, 
it  is  entitled  at  your  hands  to  a  conviction  of  the  accused,  un 
less,  by  proof  adduced  on  his  part,  he  shall  so  shake  the  consist 
ency  and  completeness  of  the  proof  on  the  part  of  the  Govern 
ment,  or  shall  introduce  such  questions  of  uncertainty  and  doubt, 
that  the  facts  shall  be  disturbed  in  your  mind,  or  unless  he  shall 
show  himself  in  some  predicament  of  protection  or  right  under 
the  law,— (and,  by  "  under  the  law,"  I  mean,  under  the  law  of  the 
land  where  the  crime  is  punishable,  and  where -the  trial  and 
the  sentence  are  lawfully  attributed  to  be,) — or  unless  he  shall 
introduce  some  new  facts  which,  conceding  the  truthfulness 
and  the  sufficiency  of  the  case  made  by  the  Government,  shall 
still  interpose  a  protection,  in  some  form,  against  the  applica 
tion  of  the  penalty  of  the  law.  I  take  it  that  I  need  not  say 
to  you  that  this  protection  or  qualification  of  the  character  of 
the  crime  must  be  by  the  law  of  the  land ;  and,  whether  it 
comes  to  be  the  law  of  the  land  by  its  enactment  in  the  stat 
utes  of  the  United  States,  or  by  the  adoption  and  incorporation 
into  the  law  of  the  land  of  the  principles  of  the  law  of  nations, 
is  a  point  quite  immaterial  to  you.  You  are  not  judges  of 
what  the  statutes  of  the  United  States  are,  except  so  far  as  their 
interpretation  may  rightfully  become  a  subject  of  inquiry  by 
the  Jury,  in  the  sense  of  whether  the  crime  is  within  the  in 
tent  of  the  Act,  in  the  circumstances  proved.  You  are  not 
judges  of  what  the  law  of  nations  is,  in  the  first  place  ;  nor  are 
you  judges  of  how  much  of  the  law  of  nations  has  been  adopted 
or  incorporated  into  the  system  of  our  Government  and  our 
laws,  by  the  authority  of  its  Congress  or  of  its  Courts. 

Whether,  as  I  say  to  you,  there  is  a  defence,  or  protection, 
or  qualification  of  the  acts  and  transactions  which,  in  their 
naked  nature,  and  in  their  natural  construction,  are  violent 
interferences  with  the  rights  of  property,  against  the  statute, 
and  the  protection  of  property  intended  by  the  statute, — 
whether  the  circumstances  do  change  the  liability  or  responsi 
bility  of  the  criminal,  by  the  introduction  of  a  legal  defence 
under  the  law  of  nations,  or  under  the  law  of  the  land  in  any 
other  form,  is  a  question  undoubtedly  for  the  Court, — leaving 
to  you  always  complete  control  over  the  questions  of  fact 
that  enter  into  the  subject.  So  that  the  suggestion,  also  dropped 
by  my  learned  friend,  at  the  close  of  his  remarks,  that  any 
such  arrangement  would  make  the  Jury  mere  puppets,  and 
give  them  nothing  to  do,  finds  no  place.  It  would  not  exclude 
from  your  consideration  any  matters  of  fact  which  go  to  make 
up  the  particular  condition  of  public  affairs  or  of  the  public  rela 
tions  of  the  community  towards  each  other,  in  these  collisions 
which  disturb  the  land,  provided  the  Court  shall  hold  and  say 
that,  on  such  a  state  of  facts  existing,  or  being  believed  by  you, 


OF   THE    SCHOONER    SAVANNAH.  291 

there  is  introduced  a  legal  qualification  or  protection  against 
the  crime  charged.  But,  if  it  should  be  held  that  all  these  facts 
and  circumstances,  to  the  extent  and  with  the  effect  that  is 
claimed  for  them  by  the  learned  counsel  as  matter  of  fact,  yet, 
as  matter  of  law,  leave  the  crime  where  it  originally  stood, 
being  of  their  own  nature  such  as  the  principles  of  law  do  not 
permit  to  be  interposed  as  a  protection  and  a  shield,  why, 
then  you  take  your  law  on  the  subject  in  the  same  way  as  you 
do  on  every  other  subject,  from  the  instructions  of  the  learned 
and  responsible  Bench,  whose  errors,  if  committed,  can  be  cor 
rected  ;  while  your  confusion  between  your  province  and  the 
province  of  the  Court  would,  both  in  this  case,  and  in  other 
cases,  and  sometimes  to  the  prejudice  of  the  prisoner,  and 
against  his  life  and  safety,  when  prejudices  ran  that  way,  con 
found  all  distinctions ;  and,  in  deserting  your  duty,  to  usurp 
that  of  another  portion  of  the  Court,  you  would  have  done 
what  you  could,  not  to  uphold,  but  to  overthrow  the  laws  of 
your  country  and  the  administration  of  justice  according  to  law, 
upon  which  the  safety  of  all  of  us,  at  all  times,  in  all  circum 
stances,  depends. 

Now,  gentlemen,  let  me  ask  your  attention,  very  briefly,  to 
the  condition  of  the  proof  in  this  case,  from  the  immediate 
consideration  of  which  we  have  been  very  much  withdrawn  by 
the  larger  and  looser  considerations,  as  I  must  think  them, 
which  have  occupied  most  of  the  attention  of  the  counsel,  and 
been  made  most  interesting,  undoubtedly,  and  attractive  to 
you.  These  twelve  men  now  on  trial — four  of  them  citizens 
of  the  United  States,  and  eight  of  them  foreigners  by  birth 
and  not  naturalized — formed  part  of  the  crew  of  a  vessel,  origi 
nally  a  pilot-boat,  called  the  Savannah.  That  crew  consisted 
of  twenty  men,  and  one  of  them  has  given  the  circumstances 
of  the  preparation  for  the  voyage,  of  the  embarkation  upon 
the  vessel,  of  her  weighing  anchor  from  the  port  of  Charleston 
and  making  her  course  out  to  sea  without  any  port  of  destina 
tion,  and  without  any  other  purpose  than  to  make  seizures  of 
vessels  belonging  to  the  loyal  States  of  the  Union  and  its  citizens. 
He  has  shown  you  that  all  who  went  on  board,  all  who  are  here 
on  trial,  had  a  complete  knowledge  of,  and  gave  their  ready  and 
voluntary  assent  to  and  enlistment  in  this  service  ;  and  that  the 
service  had  no  trait  of  compulsion,  or  of  organized  employment 
under  the  authority  of  Government,  in  any  act  or  signature  of 
any  one  of  the  crew,  as  far  as  he  knew,  leaving  out,  of  course, 
what  I  do  not  intend  to  dispute,  and  what  you  will  not  under 
stand  me  as  disregarding — the  effect  that  may  be  gained  from  the 
notorious  facts  and  the  documents  that  attended  the  enterprise. 
He  has  shown  you  that,  going  to  sea  with  that  purpose,  without 
any  crew  list,  without  any  contract  of  wages,*- they  descried,  early 


292  TRIAL   OF   THE   OFFICERS  AND   CREW 

in  the  morning  after  they  adventured  from  the  port,  and  at  a 
point  about  sixty  miles  to  sea,  this  bark,  and  ran  down  to  her ; 
and  that,  while  running  down  to  her,  they  sailed  under  the  flag 
of  the  United  States,  and,  hailing  the  brig,  when  within  hailing 
distance,  required  the  master  of  it  to  come  on  board  with  his 
papers.     Upon  the  inquiry  of  the  master,  by  what  authority 
they  made  that  demand  on  him,  the  stars  and  stripes  being 
then  floating  at  the  masthead  of  the  Savannah,  Captain  Baker 
informed  him  that  it  was  in  the  name  and  by  the  authority  of 
the  Confederate  States  of  America,  at  the  same  time  hauling 
down  the  American  flag  and  running  up  the  flag  of  the  Con 
federacy.     Whatever  followed  after  this,  gentlemen,  except  so 
far  as  to  complete  the  possession  of  the  captured  vessel,  by 
putting  a  prize  crew  on  board  of  it,  (so  called,)  sending  it  into 
Charleston,  and  there  lodging  in  jail  the  seamen  or  ship's  com 
pany  of  the  Joseph  that  accompanied  it,  and  procuring  a  sale 
of  the  vessel — anything  beyond  that  (and  this  only  to  show  the 
completeness  of  the  capture,  and  the  maintenance  of  the  design 
to  absolutely  deprive  the  owners  of  the  vessel  and  cargo  of 
their  property)  seems  to  be  quite  immaterial.     Now,  when  we 
add  to  this  the  testimony  of  Mr.  Meyer,  the  master  of  the  cap 
tured  vessel,  who  gives  the  same  general  view  of  the  circum 
stances  under  which  his  vessel  was  overhauled  and  seized  by 
the  Savannah,  as  well  as  the  observations  and  the  influences 
which  operated  upon  his  mind  while  the  chase  was  going  on, 
we  have  the  completeness  of  the  crime, — not  forgetting  the 
important  yet  undisputed  circumstances  of  the  ownership  of 
the  vessel,  and  of  the  nature  of  the  voyage  in  which  she  was 
engaged.     You  will  observe  that  this  vessel,  owned  by,  and, 
we  may  suppose,  judging  from  the  position   of  the  witnesses 
examined  before  you,  constituting*  a  good  part  of  the  property 
of,   our  fellow-countrymen  in  the  State  of  Maine,  sailed  on 
the  28th  day  of  April,  from  Philadelphia,  bound  on  a  voyage 
to  Cardenas,  in  Cuba,  with  a  charter  party  out  and  back, 
under  which  she  was  to  bring  in  a  cargo  of  sugar  and  molas 
ses.     You  will  have  noticed,  comparing  this  date  with  some  of 
the   public  transactions  given  in  evidence,  that  it  was  after 
both  the  proclamation  of  Mr.  Davis,  inviting  hostile  aggres 
sions  against  the  commerce  of  the  United  States,  on  the  part  of 
whosoever  should  come  to  take  commissions  from  him ;  and  after 
the  proclamation  of  the  President  of  the  United  States,  made 
to  the  people  of  the  United  States  and  all  under  its  peace  and 
protection,  that  if,  under  this  invitation  of  Mr.  Davis,  anybody 
should  assume  authority  to  make  aggressions,  on  the  high  seas, 
upon  the  private  property  of  American  citizens,  they  should  be 
punished  as  pirates.   This  vessel,  therefore,  sailed  on  her  voyage 
under  the  protection  of  the  laws  of  the  United  States,  and  under 


OF   THE   SCHOONER    SAVANNAH.  293 

this  statement  of  its  Government,  that  the  general  laws  which 
protected  property  and  seamen  on  the  high  seas  against  the  crime 
of  piracy  were  in  force,  and  would  be  enforced  by  the  Govern 
ment  of  the  United  States,  wherever  it  held  power,  against  any 
aggressions  that  should  assume  to  be  made  under  the  protection 
of  the  proclamation  of  Mr.  Davis.  While  returning,  under  the 
protection  of  this  flag  and  of  this  Government,  she  meets  with 
hostile  aggression  at  the  hands  of  an  armed  vessel,  which  has 
nothing  to  distinguish  it  from  the  ordinary  condition  of  piracy, 
except  this  very  predicament  provided  against  by  the  procla 
mation  of  the  President,  and  under  the  protection  of  which, 
the  vessel  had  sailed,  to  wit,  the  supposed  authority  of  J  effer- 
son  Davis  ;  which  should  not,  and  cannot,  and  will  not,  as  I 
suppose,  protect  that  act  from  the  guilt  and  the  punishment  of 
piracy. 

Now,  you  will  have  observed,  gentlemen,  in  all  this,  that 
whatever  may  be  the  circumstances  or  the  propositions  of  law 
connected  with  this  case,  that  may  change  or  quality  the  acts 
and  conduct  of  Mr.  Baker,  so  far  as  the  owners  of  this  vessel 
and  the  owners  of  this  cargo  are  concerned,  there  has  been  as 
absolute,  as  complete,  as  nnal  and  as  perfect  a  deprivation  of 
their  property,  as  if  there  had  been  no  commission — no  public 
or  other  considerations  that  should  expose  them  to  having  the 
act  done  with  impunity.  You  will  discover,  then,  that,  so  far 
as  the  duty  of  protection  from  this  Government  to  its  citizens 
and  their  property — so  far  as  the  duty  of  maintaining  its  laws 
and  enforcing  them  upon  the  high  seas — is  concerned,  there  is 
nothing  pretended — there  is  nothing,  certainly,  proved — that 
has  excused  or  can  excuse  this  Government,  in  its  Executive 
Departments,  in  its  Judicial  Departments,  in  the  declaration  of 
law  from  the  Court,  or  in  the  finding  of  facts  by  the  Jury, 
from  its  duty  towards  its  citizens  and  their  property.  And, 
while  you  have  been  led  to  look  at  all  the  qualifying  circum 
stances  that  should  attend  your  judgment  concerning  the  act 
and  the  fact  on  the  part  of  these  prisoners,  I  ask  your  ready 
assent  to  the  proposition,  that  you  should  look  at  the  case  of 
these  sufferers,  the  victims  of  those  men,  whose  property  has 
been  ventured  upon  the  high  seas  in  reliance  on  its  safety 
against  aggression^  from  whatever  source,  under  the  exercise 
ot  the  authority  of  the  Government  to  repel  and  to  punish  such 
crimes. 

Before  I  go  into  any  of  the  considerations  which  are  to  affect 
the  relations  of  these  prisoners  to  this  alleged  crime,  and  to  this 
trial  for  such  alleged  crime,  let  us  see  what  there  are  in  the  pri 
vate  circumstances  particular  to  themselves,  and  their  engage 
ment  in  this  course  of  proceeding,  that  is  particularly  suited  to 


294:  TRIAL   OF   THE   OFFICERS   AND   CREW 

attract  your  favor  or  indulgence.  Now,  these  men  had  not,  any 
of  them,  been  under  the  least  compulsion,  or  the  least  personal 
or  particular  duty  of  any  kind,  to  engage  in  this  enterprise. 
Who  are  they  ?  Four  of  them  are  citizens  of  the  United  States. 
Mr.  Baker  is,  by  birth,  a  citizen  of  the  State  of  Pennsylvania ; 
two  are  citizens,  by  birth,  of  the  State  of  South  Carolina,  and 
one  of  North  Carolina.  The  eight  men,  foreigners,  are,  three 
of  Irish  origin,  two  of  Scotch,  one  a  German,  one  a  native  of 
Manilla,  in  the  East  Indies,  and  one  of  Canton,  in  China. 
Now,  you  will  observe  that  no  conscription,  no  enlistment,  no 
inducement,  no  authority  of  any  public  kind  has  been  shown, 
or  is  suggested,  as  having  influenced  any  of  them  in  this  enter 
prise.  My  learned  friend  has  thought  it  was  quite  absurd  to 
impute  to  this  Chinaman  and  this  Manillaman  a  knowledge  of 
our  laws.  Is  it  not  quite  as  absurd  to  throw  over  them  the  pro 
tection  of  patriotism — the  protection  of  indoctrination  in  the 
counsels  and  ethics  of  Calhonn- — to  give  them  the  benefit  of  a 
departure  from  moral  and  natural  obligations  to  respect  the 
property  of  others,  on  the  theory  that  they  must  surrender  their 
own  rectitude — their  own  sense  of  right — to  an  overwhelm 
ing  duty  to  assist  a  suffering  people  in  gaining  their  liberty? 
What  I  have  said  of  them  applies  equally  to  these  Irishmen, 
this  German,  and  these  Scotchmen — as  good  men,  if  you  please, 
in  every  respect,  as  the  same  kind  of  men  born  in  this  country. 
I  draw  no  such  national  distinctions ;  but  I  ask  what  there  is, 
in  the  sober,  sensible,  practical  consideration  of  the  motives  and 
purposes  with  which  these  men  entered  into  this  enterprise  to 
despoil  the  commerce  of  the  United  States,  and  make  poor  men 
of  the  owners  of  that  vessel,  that  should  give  them  immunity 
from  the  laws  of  property  and  the  laws  of  the  land,  or  form  any 
part  in  the  struggles  of  a  brave  and  oppressed  people,  (as  we 
will  consider  them,  for  the  purpose  of  the  argument),  against  a 
tyrannical  and  bloodthirsty  Government  ? 

No !  no !  Let  their  own  language  indicate  the  degree  and 
the  dignity  of  the  superior  motives  that  entered  into  their  adop 
tion  of  this  enterprise  :  "  We  thought  we  had  a  right  to  do  it, 
and  we  did  it."  Was  there  the  glow  of  patriotism — was  there 
the  self-sacrificing  devotion  to  work  in  the  cause  of  an  oppressed 
people,  in  this?  No!  And  the  only  determination  that  these 
men  knew  or  looked  at,  was  the  lawfulness  of  the  enterprise,  in 
respect  of  the  sanctions  and  punishments  of  the  law.  They, 
undoubtedly,  had  not  any  purpose  or  any  thought  of  running 
into  a  collision  with  the  comprehensive  power  and  the  all-pun 
ishing  condemnation  of  the  statutes  of  the  United  States,  wheth 
er  they  knew  what  the  statutes  were  or  not ;  but  they  did  take 
advantage  of  the  occasion  and  opportunity  to  share  the  profits 


OF   THE    SCHOONER    SAVANNAH.  295 

of  a  privateering  enterprise  against  the  commerce  of  the  United 
States;  and  they  were  unquestionably  acquainted,  either  by 
original  inspection  or  by  having  a  favorable  report  made  to 
them  with  the  fundamental  provision  in  regard  to  this  system  of 
privateering,  so  called.  They  knew  that  the  entire  profits  of 
the  transaction  would  be  distributed  among  those  who  were 
engaged  in  it.  Now,  I  am  not  making  any  particular  or  spe 
cial  condemnation  of  these  men,  (in  thus  readily,  without  com 
pulsion,  and  without  the  influence  of  any  superior  motives,  how 
ever  mistaken,  of  patriotism,)  beyond  what  the  general  princi 
ples  of  public  law,  and  general  opinion,  founded  on  the  expe 
rience  of  privateering,  have  shown  to  be  the  reckless  and 
greedy  character  of  those  who  enter  upon  private  war,  under 
the  protection  of  any,  however  recent,  nag.  Every  body  knows 
it — every  body  understands  it — every  body  recognizes  the  fact 
that,  if  privateers,  who  go  in  under  the  hope  of  gain,  and  for 
the  purposes  of  spoliation,  are  not  corrupt  and  depraved  at  the 
outset,  they  expose  themselves  to  influences,  and  are  ready  to- 
expose  themselves  to  influences,  which  will  make  them  as 
dangerous,  almost,  to  commerce,  and  as  dangerous  to  life,  as  if 
the  purpose  and  the  principle  of  privateering  did  not  distinguish 
them  from  pirates.  And,  to  show  that,  in  this  law  of  ours,  there 
is  nothing  that  is  forced  in  its  application  to  privateers — that 
there  is  nothing  against  the  principles  of  humanity  or  common 
sense  in  the  nation's  undertaking  to  say,  We  will  not  recognize 
any  of  those  high  moral  motives,  any  of  this  superior  dignity, 
about  privateers ;  we  understand  the  whole  subject,  and  we 
know  them  to  be,  in  substance  and  effect,  dangerous  to  the 
rights  of  peaceful  citizens,  in  their  lives  and  their  property, — 
reference  need  only  be  had  to  the  action  of  civilized  Govern 
ments,  and  to  that  of  our  Government  as  much  as  any,  in  un 
dertaking  to  brush  away  these  distinctions,  wherever  it  had  the 
power — that  is  my  proposition — wherever  it  had  the  power 
to  do  so.  And  I  ask  your  Honors'  attention  to  the  provision 
on  this  subject,  in  the  iirst  treaties  which  our  Government — 
then  scarcely  having  a  place  among  the  nations  of  the  earth — 
introduced  upon  this  very  question  of  piracy  and  privateers.  I 
refer  to  the  twenty-first  article  of  the  Treaty  of  Commerce  with 
France,  concluded  on  the  6th  of  February,  1778,  on  page  24  of 
the  eighth  volume  of  the  Statutes  at  Large.  This  is  a  com 
mercial  arrangement,  entered  into  by  this  infant  Government, 
before  its  recognition  by  the  Throne  of  Great  Britain,  with  its 
ally,  the  most  Christian  Monarch  of  France : 

"  No  subjects  of  the  Most  Christian  King  shall  apply  for  or  take  any  com 
mission  or  letters  of  marque,  for  arming  any  ship  or  ships  to  act  as  privateers 
against  the  said  United  States,  or  any  of  them,  or  against  the  subjects,  peo 
ple  or  inhabitants  of  the  said  Cnited  States,  or  any  of  them,  or  against  the 
property  of  any  of  the  inhabitants  of  any  of  them,  from  any  Prince  or  State 


296  TRIAL    OF   THE    OFFICERS    AND   CREW 

with  which  the  said  United  States  shall  be  at  war ;  nor  shall  any  citizen, 
subject  or  inhabitant  of  the  said  United  States,  or  any  of  them,  apply  for  or 
take  any  commission  or  letters  of  marque  for  arming  any  ship  or  ships,  to 
act  as  privateers  against  the  subjects  of  the  Most  Christian  King,  or  any  of 
them,  or  the  property  of  any  of  them,  from  any  Prince  or  State  with  which 
the  said  King  shall  be  at  war ;  and  if  any  person  of  either  nation  shall  take 
such  commissions  or  letters  of  marque,  he  shall  be  punished  as  a  pirate." 

Now,  we  have  had  a  great  deal  of  argument  here  to  show 
that,  under  the  law  of  nations, — under  the  law  that  must  con 
trol  and  regulate  the  international  relations  of  independent 
powers — it  is  a  gross  and  violent  subversion  of  the  natural, 
inherent  principles  of  justice,  and  a  confusion  between  crime 
and  innocence,  to  say  to  men  who,  under  the  license  of  war, 
take  commissions  from  other  powers,  that  they  shall  be  hanged 
as  pirates.  And  yet,  in  the  first  convention  which  we,  as 
an  infant  nation,  formed  with  any  civilized  power,  attending 
in  date  the  Treaty  of  Alliance  which  made  France  our 
friend,  our  advocate,  our  helper,  in  the  war  of  the  Revolution, 
his  Most  Christian  Majesty,  the  King  of  France,  standing 
second  to  no  nation  in  civilization,  signalized  this  holy  alliance 
of  friendship  in  behalf  of  justice,  and  humanity,  and  liberty, 
by  engaging  that,  whatever  the  law  of  nations  might  be,  what 
ever  the  speciousness  of  publicists  might  be,  his  subjects,  amen 
able  to  the  law,  should  never  set  up  the  pretence  of  a  com 
mission  of  privateering  againsf  the  penalties  of  piracy.  Nor 
had  this  treaty  of  commerce  which  I  have  referred  to,  any 
thing  of  the  nature  of  a  temporary  or  warlike  arrangement 
between  the  parties,  pending  the  contest  with  Great  Britain. 
It  was  a  treaty  independent  of  the  Treaty  of  Alliance  which 
engaged  them  as  allies,  offensive  and  defensive,  in  the  prose 
cution  of  that  war.  Nor  is  this  an  isolated  case  of  the  moral 
ity  and  policy  of  this  Government  on  the  subject  of  piracy. 
By  reference  to  the  19th  Article  of  the  Treaty  between  the 
Netherlands  and  the  United  States,  concluded  in  1782,  at  p.  44 
of  the  same  volume,  your  honors  will  find  the  same  provision. 
After  the  same  stipulation,  excluding  the  acceptance  of  com 
missions  from  any  power,  to  the  citizens  or  subjects  of  the 
contracting  parties,  there  is  the  same  provision  :  "  And  if  any 
person  of  either  nation  shall  take  such  commissions  or  letters 
of  marque,  he  shall  be  punished  as  a  pirate." 

Now,  our  Government  has  never  departed  from  its  purpose 
and  its  policy,  to  meliorate  the  law  of  nations,  so  as  to  extir 
pate  this  business  of  private  war  on  the  ocean.  It  is  entirely 
true  that,  in  its  subsequent  negotiations  with  the  great  powers 
of  Christendom,  it  has  directed  its  purpose  to  the  more  thor 
ough  and  complete  subversion  and  annihilation  of  the  whole 
abominable  exception,  which  is  allowed  on  the  high  seas,  from 
the  general  melioration  of  the  laws  of  war,  that  does  not  tole- 


OF  THE   SCHOONER   SAVANNAH.  297 

rate  aggressions  of  violence,  and  murder,  and  rapine,  and 
plunder,  except  by  the  recognized  forces  contending  in  the 
field.  It  has  attempted  to  secure  not  only  the  exclusion  of 
private  armed  vessels  from  privateering,  but  the  exclusion  of 
aggressions  on  the  part  of  public  armed  vessels  of  belligerents 
on  private  property  of  all  kinds  upon  the  ocean.  And  no 
trace  of  any  repugnance  or  resistance  on  the  part  of  our  Gov 
ernment  to  aid  and  co-operate  in  that  general  melioration  in 
the  laws  of  war,  in  respect  to  property  on  the  ocean,  can  be 
charged  or  proved.  In  pursuance  of  that  purpose,  as  well  as 
in  conformity  with  a  rightful  maintenance  of  its  particular 
predicament  in  naval  war, — to  wit.,  a  larger  commerce  than 
most  other  nations,  and  a  smaller  navy, — it  has  taken  logically, 
and  diplomatically,  and  honestly,  the  position  :  I  will  not  yield 
to  these  false  pretences  of  humanity  and  melioration  which 
will  only  deprive  us  of  privateers,  and  leave  our  commerce 
exposed  to  your  immense  navies.  If  you  are  honest  about  it, 
as  we  are,  and  opposed  to  private  war,  why,  condemn  and 
repress  private  war  in  respect  to  the  private  character  of  the 
property  attacked,  as  well  as  private  war  in  respect  to  the 
vesssels  that  make  the  aggressions. 

Nor,  gentlemen,  do  I  hesitate  to  say  that,  whatever  we  may 
readily  concede  to  an  honest  difference  of  opinion  and  feeling, 
in  respect  to  great  national  contests,  where  men,  with  patriotic 
purposes,  raise  the  standard  of  war  against  the  Government, 
and,  on  the  other  hand,  uphold  the  old  standard  to  suppress 
the  violence  of  war  lifted  against  it,  we  do  not,  we  cannot,  as 
honest  and  sensible  men,  look  with  favor  upon  an  indiscrimi 
nate  collection  from  the  looser  portions  of  society,  that  rush 
on  board  a  marauding  vessel,  the  whole  proceeds  and  results 
of  whose  aggressions  are  to  fill  their  own  pockets.  And,  when 
my  learned  friends  seek  to  go  down  into  the  interior  conscience 
and  the  secret  motives  of  conduct,  I  ask  you  whether,  if  this 
had  been  a  service  in  which  life  was  to  be  risked,  and  all  the 
energies  of  the  man  were  to  be  devoted  to  the  public  service,  for 
the  glory  and  the  interests  of  the  country,  and  the  poor  food, 
poor  clothing  and  poor  pay  of  enlisted  troops,  you  would  have 
found  precisely  such  a  rush  to  that  service? 

Xow,  I  am  not  seeking,  by  these  considerations,  to  disturb 
in  the  least  the  legal  protections,  if  there  be  any,  in  any  form, 
which  it  is  urged  have  sprung  out  of  the  character  of  privateer 
ing  which  this  vessel  had  assumed,  and  these  men,  as  part  of 
its  crew,  had  been  incorporated  in.  If  legal,  let  it  be  so;  but 
do  not  confound  patriotism,  which  sacrifices  fortune  and  life  for 
the  love  of  country,  with  the  motives  of  these  men,  who  seek 
privateering  because  they  are  out  of  employment.  Far  be  it 
from  me  to  deny  that  the  feeling  of  lawful  right,  the  feeling 


298  TRIAL   OF   THE   OFFICERS   AND   CREW 

that  statutory  law  is  not  violated,  if  it  draw  the  line  between 
doing  and  not  doing  a  thing,  is  on  the  whole  a  meritorious  con 
sideration  and  a  trait  that  should  be  approved.  But  I  do  ob 
ject  to  having  the  range  of  these  men's  characters  and  motives 
exalted,  from  the  low  position  in  which  their  acts  and  conduct 
place  them,  into  the  high  purity  of  the  patriot  and  the  martyr. 
We  are  trying,  not  the  system  of  privateering — we  are  trying 
the  privateers,  as  they  are  called ;  and,  when  they  tail  of  legal 
protection,  they  cannot  cover  themselves  with  this  robe  of 
righteousness  in  motive  and  purpose. 

Now,  how  much  was  there  of  violence  in  the  meditated 
course,  or  in  the  actual  aggression  ?  Why,  the  vessel  is  named 
in  the  commission  as  having  a  crew  of  thirty.  In  fact,  she  had 
twenty.  Four  men  was  a  sufficient  crew  for  a  mercantile  voy 
age.  She  had  an  eighteen  pounder,  a  great  gun  that  must 
have  reached  half  way  across  the  deck,  resting  on  a  pivot  in 
the  middle,  capable  of  being  brought  around  to  any  quarter,  for 
attack.  At  the  time  this  honest  master  and  trader  of  the  Jo 
seph  descried  the  condition  of  the  vessel,  he  was  struck  with 
this  ugly  thing  amidships,  as  he  called  it — to  wit,  this  eighteen 
pound  cannon,  and  was  afraid  it  was  a  customer  probably  ag 
gressive — a  robber.  But  he  was  encouraged  by  what  ?  Although 
he  saw  this  was  a  pilot  boat,  and  not  likely,  with  good  intent,  to 
be  out  so  far  at  sea,  what  was  this  honest  sailor  encouraged  by  ? 
The  flag  of  the  United  States  was  flying  at  her  mast !  But, 
when  hailed — still  under  that  view  as  to  the  aspect  presented  by 
the  marauding  vessel — he  is  told  to  come  on  board,  and  asks  by 
what  authority — instead  of  what  would  have  been  the  glad  and 
reassuring  announcement — the  power  of  the  American  nag — the 
Confederate  States  were  announced  as  the  marauding  authority, 
and  the  flag  of  his  country  is  hauled  down,  and  its  ensign  re 
placed  by  this  threat  to  commerce.  Now,  when  this  gun,  as 
ne  says,  was  pointed  at  him,  and  this  hostile  power  was  assert 
ed,  my  learned  friends,  I  submit  to  you,  cannot,  consistently 
with  the  general  fairness  with  which  they  have  pursued  this 
argument,  put  the  matter  before  you  as  failing  in  any  of  the 
completeness  of  proof  concerning  force.  For,  when  we  were 
proposing  to  show  that  these  prisoners  all  the  while,  in  their 
plans,  had  the  purpose  of  force,  if  force  was  necessary,  and 
that,  in  the  act  of  collision  with  the  capturing  vessel,  that  force 
occurred,  we  were  stopped,  upon  the  ground  that  it  was  unneces 
sary  to  occupy  the  attention  of  the  Court  and  the  Jury  with 
anything  that  was  to  qualify  this  vessel's  violent  character,  by 
reason  of  the  admission  that,  if  it  was  not  protected  by  the  com 
mission,  or  the  circumstances  of  a  public  character  of  what 
ever  kind  and  degree — about  which  I  admit  there  was  no  re 
striction  of  any  kind, — if  it  stood  upon  the  mere  fact  that  the 


OF  THE   SCHOONER   SAVANNAH.  299 

vessel  was  taken  from  its  owners  by  the  Savannah,  in  the  way 
that  was  testified, — it  would  not  be  claimed  to  be  wanting  in  any 
of  the  quality  of  complete  spoliation,  or  in  any  of  the  quality  of 
force.  Now,  that  defence,  we  may  say,  must  not  be  recurred 
to,  to  protect,  in  your  minds,  these  men  from  the  penalty  which 
the  law  has  imposed  upon  the  commission  of  piracy.  It  can 
not  be  pretended  that  there  was  any  defect  in  the  purpose  of 
despoiling  the  original  owners,  nor  that  there  is  any  deficiency 
in  the  exhibition  of  force,  to  make  it  piracy ;  and  vou  will  per 
ceive,  gentlemen,  that  although  my  learned  friends  successive 
ly,  Mr.  Dukes,  Mr.  Sullivan,  and  Mr.  Brady,  have,  with  the 
SKill  and  the  purpose  of  advocates,  taken  occasion,  at  frequent 
recurring  points,  to  get  you  back  to  the  want  of  a  motive  and  in 
tent  or  purpose  of  the  guiltiness  of  robbing,  yet,  after  all,  it 
comes  to  this — that  the  inconsistency  of  the  motive  and  in 
tent,  or  the  guiltiness  of  robbing,  with  the  lawfulness,  under 
the  law  of  nations,  of  privateering,  is  the  only  ground  or  rea 
son  why  the  crime  is  deficiently  proved. 

I  do  not  know  that  I  need  say  anything  to  you  about  priva 
teering,  further  than  to  present  somewhat  distinctly  what  the 
qualifications,  what  the  conditions,  and  what  the  purposes,  of 
privateering  are.  In  the  first  place,  privateering  is  a  part  of 
war,  or  is  a  part  of  the  preliminary  hostile  aggressions  which 
are  in  the  nature  of  a  forcible  collision  between  sovereign 
powers.  Now  what  is  the  law  of  nations  on  this  subject — and 
now  does  there  come  to  be  a  law  of  nations — and  what  is  its 
character,  what  are  its  sanctions,  and  who  are  parties  to  it? 
"We  all  know  what  laws  are  when  they  proceed  from  a  Govern 
ment,  and  operate  upon  its  citizens  and  its  subjects.  Law  then 
comes  with  authority,  by  right,  and  so  as  to  compel  obedience ; 
and  laws  are  always  framed  with  the  intent  that  there  shall 
be  no  opportunity  of  violent  or  forcible  resistance  to  them,  or  of 
violent  or  forcible  settlement  of  controversies  under  them,  but 
that  the  power  shall  be  submitted  to,  and  the  inquiry  as  to 
right  proceed  regularly  and  soberly,  under  the  civil  and 
criminal  tribunals.  But,  when  we  come  to  nations,  although 
they  have  relations  towards  each  other,  although  they  have 
duties  towards  each  other,  although  they  have  rights  towards 
each  other,  and  although,  in  becoming  nations,  they  never 
theless  are  all  made  up  of  human  beings,  under  the  general 
laws  of  human  duty,  as  given  by  the  common  lawgiver,  God, 
yet  there  is  no  real  superior  that  can  impose  law  over  them,  or 
enforce  it  against  them.  And  it  is  only  because  of  that,  that 
war,  the  scourge  of  the  human  race — and  it  is  the  great  vice 
and  defect  of  our  social  condition,  that  it  cannot  be  avoided — 
comes  in,  as  the  only  arbiter  between  powers  that  have  no  com 
mon  superior.  I  am  sure  that  the  little  time  I  shall  spend 
upon  this  topic  will  be  serviceable ;  as,  also,  in  some  more  par- 


300  TRIAL   OF  THE   OFFICERS   AND  CREW 

ticular  considerations,  as  to  what  is  called  a  state  of  war,  and 
as  to  the  conditions  which  give  and  create  a  war  between  the 
different  portions  of  our  unhappy  country  and  its  divided  popu 
lation.  So,  then,  nations  have  no  common  superior  whom  they 
recognize  under  this  law,  which  they  have  made  for  themselves 
in  the  interest  of  civilization  and  humanity,  and  which  is  a  law 
of  natural  right  and  natural  duty,  so  far  as  it  can  be  applied  to 
the  relations  which  nations  hold  to  one  another.  They  recognize 
the  fact  that  one  nation  is  just  as  good,  as  matter  of  right,  of 
another ;  that  whether  it  be  the  great  Powers  of  Kussia,  as 
England,  of  France,  of  the  United  States  of  America,  or  of  Brazil, 
or  whether  it  be  one  of  the  feeble  and  inferior  Powers,  in  the 
lowest  grade, — as,  one  of  the  separate  Italian  Kingdoms,  or 
the  little  Kepublic  of  San  Marino,  whose  territories  are  em 
braced  within  the  circuit  of  a  few  leagues,  or  one  of  the  South 
American  States,  scarcely  known  as  a  Power  in  the  affairs  of 
men, — yet,  under  the  proposition  that  the  States  are  equal  in  the 
family  of  nations,  they  have  a  right  to  judge  of  their  quarrels, 
and,  finding  occasions  for  quarrel,  have  a  right  to  assert  them, 
as  matter  of  force,  in  the  form  of  war.  And  all  the  other 
nations,  however  much  their  commerce  may  be  disturbed  and 
injured,  are  obliged  to  concede  certain  rights  that  are  called  the 
rights  of  war.  We  all  understand  what  the  rights  of  war  are 
on  the  part  of  two  people  fighting  against  each  other.  A 
general  right  is  to  do  each  other  as  much  injury  as  they  can; 
and  they  are  very  apt  to  avail  themselves  of  that  right.  There 
are  certain  meliorations  against  cruelty,  which,  if  a  nation 
should  transgress,  probably  other  nations  might  feel  called  upon 
to  suppress.  But,  as  a  general  thing,  while  two  nations  are 
fighting,  other  nations  stand  by,  and  do  not  intervene.  But 
the  way  other  nations  come  to  have  any  interest,  and  to  have 
anything  to  say  whether  there  is  war  between  sovereign 
powers,  grows  out  of  certain  rights  of  war  which  the  law  of 
nations  gives  to  the  contending  parties,  against  neutrals.  For 
instance:  Suppose  Spain  and  Mexico  were  at  war.  Well,  you 
would  say,  what  is  that  to  us  ?  It  is  this  to  us.  On  the  high 
seas,  a  naval  vessel  of  either  power  has  a  right,  in  pursuit  of 
its  designs  against  the  enemy,  to  interrupt  the  commerce  of 
other  nations  to  a  certain  extent.  It  has  a  right  of  visita 
tion  and  of  search  of  vessels  that  apparently  carry  our  flag. 
Why?  In  order  to  see  whether  the  vessel  be  really  our 
vessel,  or  whether  our  flag  covers  the  vessel  of  its  enemy,  or 
the  property  of  its  enemy.  It  has  also  a  right  to  push  its 
inquiries  farther,  and  if  it  finds  it  to  be  a  vessel  of  the  United 
States  of  America,  to  see  whether  we  are  carrying  what  are 
called  contraband  of  war  into  the  ports  of  its  enemy ;  and,  if 
so,  to  confiscate  it  and  her.  Each  of  the  powers  has  a  right  to 


OF   THE    SCHOONER   SAVANNAH.  301 

blockade  the  ports  of  the  other,  and  thus  to  break  up  the  trade 
and  pursuits  of  the  people  of  other  nations — and  that  without 
any  quarrel  with  the  other  people.  And  so  you  see,  by  the 
law  of  nations,  this  state  of  war,  which  might,  at  first,  seem  to 
be  only  a  quarrel  between  the  two  contending  parties,  really 
becomes,  collaterally,  and,  in  some  cases,  to  a  most  important 
extent,  a  matter  of  interest  to  other  nations  of  the  globe.  But 
however  much  we  suffer — however  much  we  are  embarrassed 
(as,  for  example,  in  the  extreme  injury  to  British  commerce 
and  British  interests  now  inflicted  in  this  country — the  blockade 
keeping  out  their  shipping,  and  preventing  shipments  of  cotton 
to  carry  on  their  industry) — we  must  submit,  as  the  English 
people  submit,  in  the  view  their  Government  has  chosen  to  take 
of  these  transactions. 

Now,  gentlemen,  this  being  the  law  of  nations,  you  will 
perceive  that,  as  there  is  no  human  earthly  superior,  so  there 
are  no  Courts  that  can  lay  down  the  law,  as  our  Courts  do  for 
our  people,  or  as  the  Courts  of  England  do  for  their  people. 
There  are  no  Courts  that  can  lay  down  the  law  of  nations,  so  as 
to  bind  the  people  of  another  country,  except  so  far  as  the 
Courts  of  that  country,  recognizing  the  sound  principles  of 
morality,  humanity  and  justice  obtaining  in  the  government 
and  conduct  of  nations  towards  each  other,  adopt  them  in  their 
own  Courts.  So,  when  my  learned  friends  speak  of  the  law  of 
nations  as  being  the  law  that  is  in  force  here,  and  that  may 

Erotect  these  prisoners  in  this  case  against  the  laws  of  the  United 
tates  of  America,  why,  they  speak  in  the  sense  of  lawyers,  or 
else  in  a  sense  that  will  confuse  your  minds,  that  is  to  say,  that 
the  law  of  nations,  as  the  Court  will  expound  and  explain  it, 
has  or  has  not  a  certain  effect  upon  what  would  be  otherwise 
the  plain  behests  of  the  statute  law. 

Now,  it  is  a  part  of  the  law  of  nations,  except  so  far  as 
between  themselves  they  shall  modify  it  by  treaty — (two  instan 
ces  of  which  1  have  read  in  the  diplomacy  of  our  own  country, 
and  a  most  extensive  instance  of  which  is  to  be  found  in  the 
recent  treaty  of  Paris,  whereby  the  law  of  nations,  in  respect 
to  privateering,  has  been  so  far  modified  as  to  exclude  priva 
teering  as  one  of  the  means  of  war) — outside  of  particular 
arrangements  made  by  civilized  nations,  it  was  a  part  of  the 
original  law  of  war  prevailing  among  nations,  that  any  nation 
engaged  in  war  might  fit  out  privateers  in  aid  of  its  belligerent 
or  warlike  purposes  or  movements.  No  difficulty  arose  about 
this  when  war  sprang  up  between  two  nations  that  stood  before 
the  world  in  their  accredited  and  acknowledged  independence. 
If  England  and  France  went  to  war,  or  if  England  and  the 
United  States,  as  in  1812,  went  to  war,  this  right  of  fitting  out 
privateers  would  obtain  and  be  recognized.  But,  there  arises, 


302  TRIAL   OF   THE   OFFICERS   AND   CREW 

in  the  affairs  of  nations,  a  condition  much  more  obscure  and 
uncertain  than  this  open  war  between  established  powers,  and 
that  is,  when  dissension  arises  in  the  same  original  nation — 
when  it  proceeds  from  discontent,  sedition,  private  or  local 
rebellion,  into  the  inflammation  of  great  military  aggression ; 
and  when  the  parties  assume,  at  leastl,  (assume,  I  say),  to  be 
rightfully  entitled  to  the  position  of  Powers,  under  the  law  of 
nations,  warring  against  one  another.  The  South  American 
States,  in  their  controversy  which  separated  them  from  the 
parent  country,  and  these  States,  when  they  were  Colonies  of 
Great  Britain,  presented  instances  of  these  domestic  dissensions 
between  the  different  parts  of  the  same  Government,  and  the 
rights  of  war  were  claimed.  Now,  what  is  the  duty  of  other 
nations  in  respect  to  that?  Why,  their  duty  and  right  is  this — 
that  they  may  either  accord  to  these  struggling,  rebellious, 
revolted  populations  the  rights  of  war,  so  far  as  to  recognize 
them  as  belligerents,  or  not ;  but,  whether  they  will  do  so,  or 
not,  is  a  question  for  their  Governments,  and  not  for  their 
Courts,  sitting  under  and  by  authority  of  their  Governments. 
For  instance,  you  can  readily  see  that  the  great  nations  of  the 
earth,  under  the  influences  upon  their  commerce  and  their 
peace  which  I  have  mentioned,  may  very  well  refuse  to  tole 
rate  the  quarrel  as  being  entitled  to  the  dignity  of  war.  They 
may  say — No,  no ;  we  do  not  see  any  occasion  for  this  war,  or 
any  justice  or  benefit  that  is  to  be  promoted  by  it ;  we  do  not  see 
the  strength  or  power  that  is  likely  to  make  it  successful ;  and 
we  will  not  allow  a  mere  attempt  or  effort  to  throw  us  into  the 
condition  of  submitting  to  the  disturbance  of  the  peace,  or  the 
disturbance  of  the  commerce  of  the  world.  Or,  they  may  say— 
We  recognize  this  right  of  incipient  war  to  raise  itself  and  fairly 
contend  against  its  previous  sovereign — not  necessarily  from 
any  sympathy,  or  taking  sides  in  it,  but  it  is  none  of  our  affair ; 
and  the  principles  of  the  controversy  do  not  prevent  us  from 
giving  to  them  this  recognition  of  their  supposed  rights.  Now, 
when  they  have  done  that,  they  may  carry  their  recognition  of 
right  and  power  as  far  as  they  please,  and  stop  where  they  please. 
They  may  say — We  will  tolerate  the  aggression  by  public  armed 
vessels  on  the  seas,  and  our  vessels  shall  yield  the  right  of  visita 
tion  and  search  to  them.  They  may  say — We  will  extend  it  so  far 
as  to  include  the  right  of  private  armed  vessels,  and  the  rights 
of  war  may  attend  them ;  or  they  may  refuse  to  take  this  last 
step,  and  say — We  will  not  tolerate  the  business  of  privateering 
in  this  quarrel.  And,  whatever  they  do  or  say  on  that  subject, 
their  Courts  of  all  kinds  will  follow. 

Apply  this  to  the  particular  trouble  in  our  national  affairs 
that  is  now  progressing  to  settle  the  fate  of  this  country.  France 
and  England  have  taken  a  certain  position  on  this  subject  I 


OF   THE   SCHOONER   SAVANNAH.  303 

do  not  know  whether  I  accurately  state  it  (and  I  state  it  only 
for  the  purpose  of  illustration,  and  it  is  not  material),  but,  as  I 
understand  it,  they  give  a  certain  degree  of  belligerent  right, 
so  that  they  would  not  regard  the  privateers  on  the  part  of 
the  Southern  rebellion  as  being  pirates,  but  they  do  not  accord 
succor  or  hospitality  in  their  ports  to  such  privateers.  Well, 
now,  suppose  that  one  of  these  privateers  intrudes  into  their 
ports  and  their  hospitalities,  and  claims  certain  rights.  Why, 
the  question,  if  it  comes  up  before  a  Court  in  Liverpool  or  Lon 
don,  will  be — Is  the  right  within  the  credit  and  recognition 
which  our  Government  has  given?  And  only  that.  60,  too, 
our  Government  took  the  position  in  regard  to  the  revolt 
ing  States  of  South  America,  that  it  would  recognize  them  as 
belligerents,  and  that  it  would  not  hang,  as  pirates,  privateers 
holding  commissions  from  their  authority.  But,  when  other 
questions  came  up,  as  to  whether  a  particular  authority  from 
this  or  that  self-styled  power  should  be  recognized,  our  Gov 
ernment  frowned  upon  it,  and  would  not  recognize  it.  With 
regard  to  Captain  Aury,  who  styled  himself  Generalissimo  of 
the  Floridas,  or  something  of  that  kind,  when  Florida  was  a 
Spanish  province,  our  Courts  said — We  do  not  know  anything 
about  this — his  commissions  are  good  for  nothing  here — our 
Government  has  not  recognized  any  such  contest  or  incipient 
nationality  as  this.  So,  too,  in  another  case,  where  there  was 
an  apparent  commission  from  one  struggling  power,  the  Court 
say — Our  Government  does  not  recognize  that  power,  and  we 
do  not,  in  giving  any  rights  of  war  to  it ;  but,  the  Court  say,  it 
appears  in  the  proof  that  this  vessel  claims  to  have  had  a 
commission  from  Buenos  Ayres,  another  contending  power;  if 
so,  that  is  a  power  which  our  Government  recognizes  ;  and  the 
case  must  go  down  for  further  proof  on  that  point. 

I  confess  that,  if  the  views  of  my  learned  friends  are  to 
prevail,  in  determining  questions  of  crime  and  responsibility 
under  the  laws  and  before  the  Court,  and  are  to  be  accepted 
and  administered,  I  do  not  see  that  there  is  any  Government 
at  all.  For  you  have  every  stage  of  Government :  first,  Gov 
ernment  of  right ;  next,  a  Government  in  fact ;  next,  a  Govern 
ment  trying  to  make  itself  a  fact;  and,  next,  a  Government 
which  the  culprit  thinks  ought  to  be  a  fact.  Well,  if  there  are 
all  these  stages  of  Government,  and  all  these  authorities  and 
protections,  which  may  attend  the  acts  of  people  all  over  the 
world,  I  do  not  see  but  every  Court  and  every  Jury  must, 
finally,  resolve  itself  into  the  great  duty  of  searching  the  hearts 
of  men,  and  putting  its  sanctions  upon  pure  or  guilty  secret 
motives,  or  notions,  or  interpretations  of  right  and  wrong — a 
task  to  which  you,  gentlemen  of  the  Jury,  I  take  it,  feel 
scarcely  adequate. 


304  TRIAL   OF   THE   OFFICERS    AND    CREW 

Now,  gentlemen,  I  have  perhaps  weaned  you  a  little  upon 
this  subject ;  because  it  is  from  some  confusion  in  these  ideas, — 
first,  of  what  the  law  of  nations  permits  a  Government  to  do, 
and  how  it  intrudes  upon  and  qualifies  the  laws  of  that  Govern 
ment  ;  and,  second,  upon  what  the  rights  are  that  grow  out  of 
civil  dissensions,  as  towards  neutral  powers, — that  some  diffi 
culty  and  obscurity  are  introduced  into  this  case. 

If  the  Court  please,  I  maintain  these  propositions,  in  con 
formity  with  the  views  I  have  heretofore  presented — first,  that 
the  law  of  the  land  is  to  determine  whether  this  crime  of  piracy 
has  been  committed,  subject  only  to  the  province  of  the  Jury 
in  passing  upon  the  facts  attending  the  actual  perpetration  of 
the  offence ;  and,  second,  upon  all  the  questions  invoked  to 
qualify,  from  the  public  relations  of  the  hostile  or  contending 
parties  in  this  controversy,  the  attitude  that  this  Government 
holds  towards  these  contending  parties,  is  the  attitude  that  this 
Court,  deriving  its  authority  from  this  Government,  must  neces 
sarily  hold  towards  them. 

I  have  argued  this  matter  of  the  choice  and  freedom  of  a 
Government  to  say  how  it  will  regard  these  civil  dissensions 
going  on  in  a  foreign  nation,  as  if  it  had  some  application  to 
this  controversy,  in  which  we  are  the  nation,  and  this  Court  is 
the  Court  of  this  nation. 

But,  gentlemen,  the  moment  I  have  stated  that,  you  will 
see  that  there  is  not  the  least  pretence  that  there  is  any  dis 
pensing  power  in  the  Court,  or  that  there  has  been  any  dispens 
ing  power  exercised  by  our  Government,  or  that  there  has 
been  any  pardon,  or  any  amnesty,  or  any  proclamation,  saving 
from  the  results  of  crime  against  our  laws,  any  person  engaged 
in  these  hostilities,  who  at  any  time  has  owed  allegumce  and 
obedience  to  the  Government  of  the  United  States.  Therefore, 
here  we  stand,  really  extricated  from  all  the  confusion,  and 
from  all  the  wideness  of  controversy  and  of  comment  that 
attends  these  remote  considerations  of  this  case,  that  have 
been  pressed  upon  your  attention  as  if  they  were  the  ceas 
itself,  on  the  part  of  our  learned  friend. 

Now,  if  the  Court  please,  I  shall  bestow  some  particular 
consideration  upon  the  statute,  but  I  shall  think  it  necessary 
to  add  very  little  to  the  remarks  I  have  heretofore  made  to 
the  Court.  The  8th  section  of  the  statute  has  been  charac 
terized  by  the  learned  counsel,  and,  certainly,  with  sufficient 
accuracy,  for  any  purposes  of  this  trial,  as  limited  to  the 
offence  of  piracy  as  governed  by  the  law  of  nations.  I  do  not 
know  that  any  harm  comes  from  that  description,  if  we  do  not 
confuse  it  with  the  suggestion  that  the  authority  of  this  Gov 
ernment  over  the  crime  is  limited  to  the  construction  of  the 
law  of  nations  which  is  expressed  in  that  section  of  the  statute. 


OF   THE   SCHOONER   SAVANNAH.  305 

At  all  events,  as  they  concede,  I  believe,  that  the  8th  section  is 
within  the  constitutional  right  and  power  of  Congress,  under 
the  special  clause  giving  them  authority  to  define  and  pun 
ish  piracy,  under  the  law  of  nations,  there  is  no  room  for 
controversy  here  on  the  point.  When  we  come  to  the  9th 
section,  we  have  two  different  and  quite  inconsistent  view& 
presented  by  tbe  different  counsel.  One  of  the  counsel  (I  think, 
Mr.  Dukes)  insists  that  the  9th  section  does  not  create  any 
additional  crime  beyond  that  of  piracy  as  denned  in  the  8th 
section,  but  only  robs  that  crime  of  piracy  of  any  apparent 
protection  from  a  commission  or  authority  from  any  State. 
I3ut,  my  friend  Mr.  Brady  contends  (and,  I  confess,  according 
to  my  notion  of  the  law,  with  more  soundness)  that  there  is  an- 
additional  crime,  which  would  not  be  embraced,  necessarily,  in 
the  crime  of  piracy  or  robbery  on  the  high  seas — which  is  the 
whole  purview  of  the  8th  section,  and  which  is  in  terms  re 
peated  in  the  9th — and  that  the  additional  words,  "  or  any  act 
of  hostility  against  the  United  States,  or  any  citizens  there 
of,"  create  a  punishable  offence,  although  it  may  fall  short  of 
the  completed  crime  of  piracy  and  robbery,  as  defined.  Now,  1 
concede  to  my  learned  friend  that  the  particular  case  he  put 
of  a  quarrel  between  two  ships'  crews  on  the  high  seas,  and  of 
an  attack  by  one  of  the  crew  of  one  upon  one  of  the  crew 
of  the  other  with  a  belaying  pin,  would  not,  in  my  judgment, 
as  an  indictable,  punishable  offence,  fall  within  the  9th  section. 
But,  whether  I  am  right  or  wrong  about  it,  it  does  not  im 
pede  the  argument  of  the  Government,  that  there  are  crimes 
which  are  in  the  nature  of  and  up  to  the  completeness  of  hos 
tile  attacks  upon  vessels  or  citizens  of  the  United  States  which 
would  not  be  piracy,  but  yet  are  punishable  under  the  9th 
section. 

Now,  agreeing,  thus  far,  that  there  is  an  added  offence  to 
the  crime  ot  piracy  in  the  9th  section,  I  am  obliged  to  meet 
his  next  proposition,  that  such  additional  offence  is  beyond 
the  constitutional  power  of  Congress,  because  it  is  an  offence 
which  does  not  come  up  to  the  crime  of  piracy,  and,  there 
fore,  exceeds  the  grant  of  authority  under  the  particular  sec 
tion  of  the  Constitution  which  gives  to  Congress  power  over 
the  definition  and  punishment  of  piracy  under  the  law  of 
nations. 

Now,  if  the  Court  please,  the  argument  is  a  very  simple 
one.  This  9th  section  does  not  profess  to  carry  the  power  of  tnis 
Government  where  alone  the  principles  of  the  law  of  nations 
would  justify  ;  that  is,  to  operate  upon  all  the  world,  so  far  as 
the  subjects  of  it — that  is,  the  persons  included  in  its  sanctions — 
are  concerned,  or  so  far  as  the  property  protected  by  it  is  con 
cerned.  It  is  limited  to  citizens,  and  limited  to  hostilities  against 
20 


306  TRIAL   OF   THE    OFFICERS    AND   CREW 

citizens  of  the  United  States,  or  their  property  at  sea.  Now,  the 
authority  in  respect  to  this  comes  to  Congress  under  the  provi 
sion  of  the  Constitution  which  gives  the  regulation  of  commerce 
and  its  control,  in  regard  to  which  I  need  not  be  more  particular 
to  your  Honors,  because  there  are  statutes  of  every-day  enforce 
ment,  and  under  the  highest  penalty,  too,  of  the  law,  such  as 
revolt,  mutiny,  &c.,  which  have  nothing  to  do  with  the  national 
considerations  of  the  law  of  piracy,  and  nothing  to  do  with  the 
clause  of  the  Constitution  which  gives  to  Congress  power  over 
the  crime  of  piracy,  but  rest  in  the  power  reposed  in  Congress 
to  protect  the  commerce  of  the  United  States.  So,  this  is 
•wholly  within  the  general  competency  of  Congress  to  govern 
citizens  of  the  United  States  on  the  high  seas,  and  to  protect 
the  property  of  citizens  on  the  high  seas,  although  there  is  no 
common  law  of  general  jurisdiction  of  Congress  on  the  sub 
ject  of  crimes. 

Now,  upon  this  subject  there  is  but  one  other  criticism,  and 
that  is — that  although  the  statute  is  framed  with  the  intent,  and 
its  language  covers  the  purpose,  of  prohibiting  any  defence  or 
protection  being  set  up  under  an  assumed  or  supposed  author 
ity  from  any  foreign  Government,  State,  or  Prince,  or  from  any 
person,  yet  the  particular  authority  which  is  averred  in 
the  indictment  and  produced  in  proof,  if  you  take  it  in  the 
sense  that  we  give  to  it,  is  not  within  the  purview  of  the  stat- 
tute.  and,  if  you  take  it  in  any  other  sense,  is  not  proved  ; 
and  that  thus  a  variance  arises  between  the  indictment  and  the 
proof,  because  the  proof  goes  so  far  as  to  remove  from  under 
the  statute  the  four  defendants  who  would  otherwise  be  amen 
able  as  citizens,  by  making  the  Government  foreign,  and  mak 
ing  them  foreign  citizens.  Now,  to  take  up  one  branch  of  this 
at  a  time,  I  do  not  care  at  all  whether  the  Government  of  the 
United  States,  when  they  passed  this  law,  anticipated  that 
there  ever  would  be  an  occurrence  which  would  give  shape  to 
such  a  commission  as  this,  from  either  a  person  or  an  authority 
that  emanated  from  what  was  or  ever  had  been  a  part  or  a  citi 
zen  of  the  United  States.  If  these  new  occurrences  here  have 
produced  new  relations — (and  that  is  the  entire  argument  of  my 
learned  friends,  for,  if  they  have  produced  no  new  relations, 
what  have  we  to  do  with  any  of  these  discussions  ?) — if  they  have 
produced  new  relations,  perfect  or  imperfect,  effectual  or  in 
effectual,  to  this  or  that  extent,  why  then,  if  these  new  relations 
and  attitude  have  brought  this  matter  within  the  purview  of  a 
statute  of  the  United  States  which  was  framed  to  meet  all  rela 
tions  that  might  arise  at  any  time,  they  come  within  its  pre 
dicament,  and  the  argument  seems  to  me  to  amount  to  nothing. 
It  will  not  be  pretended  that  the  9th  section  of  this  statute  can 
-only  be  enforced  as  to  Powers  in  existence  at  the  time  it  was 


OF   THE    SCHOONER    SAVANNAH.  307 

passed.  Whenever  a  new  Power  or  new  authority  is  set  forth 
as  a  protection  to  the  crime  of  piracy,  the  9th  section  of  the 
statute  says  :  "Well,  we  do  not  know  or  care  anything  about 
what  the  law  of  nations  says  about  your  protection,  or  your 
authority — we  say  that  no  citizen  of  the  United  States, 
depredating  against  our  commerce,  shall  set  up  any  au 
thority  to  meet  the  justice  of  our  criminal  law."  Well, 
now,  that  the  statute  has  said  ;  and  we  have  averred  and  proved 
the  commission  such  as  it  is. .  It  is  either  the  commission  of  a 
foreign  Prince,  or  State,  or  it  is  an  authority  from  some  per 
son.  We  do  not  recognize  it  as  from  a  foreign  State  or  Prince. 
Indeed,  Mr.  Davis  does  not  call  himself  a  Prince,  and  we  do 
not  recognize  the  Confederate  States  as  a  nation  or  State,  in 
any  relation.  Therefore,  if  we  would  prove  this  authority  un 
der  our  law,  we  must  aver  it  as  it  is,  coming  from  an  individual 
who  was  once  a  citizen  of  the  United  States,  and  still  is,  as  the 
law  decides,  a  citizen  of  the  United  States.  Whatever  port  or 
pretension  of  authority  he  assumes,  and  whatever  real  fact  and 
substance  there  may  be  to  his  power,  it  is,  in  the  eye  of  the 
law,  nothing.  It  is  not  provable,  and  it  is  not  proved. 

Now,  as  to  the  right  of  Congress  to  include  the  additional 
crime,  under  the  authority  given  to  it  to  punish  piracy  accord 
ing  to  the  law  of  nations,  my  learned  friend  contends  that  this 
statute  is  limited  by  that  authority,  and  is,  as  respects  any 
body  within  its  purview,  unconstitutional,  and  that,  although 
a  particular  act  may  be  within  the  description  of  the  statute, 
so  far  as  regards  hostility,  it  is  not  piracy.  On  that  subject  I  " 
refer  your  Honors  to  a  very  brief  proposition  contained  in  the 
case  of  The  United  States  v.  Pirates  (5  Wheaton,  202) : 

And  if  the  laws  of  the  United  States  declare  those  acts  of  piracy  in  a 
citizen,  when  committed  on  a  citizen,  which  would  be  only  belligerent  acts 
when  committed  on  others,  there  can  be  no  reason  why  such  laws  should  not 
be  enforced.  For  this  purpose  the  9th  section  of  the  Act  of  1790  appears  to 
have  been  passed.  And  it  would  be  difficult  to  induce  this  Court  to  render 
null  the  provisions  of  that  clause,  by  deciding  either  that  one  who  takes  a  com 
mission  under  a  foreign  power,  can  no  longer  be  deemed  a  citizen,  or  that  all 
acts  committed  under  such  a  commission,  must  be  adjudged  belligerent,  and 
not  piratical  acts." 

I  would  also  refer  to  the  case  of  The  Invincible,  to  which  my 
learned  friend  called  the  attention  of  the  Court,  in  the  opinion  of 
the  late  Attorney-General,  Mr.  Butler.  It  is  to  be  found  in  the 
3d  volume  of  the  Opinions  of  the  Attorney -Generals,  page  120. 
My  learned  friend  cited  this  case  in  reference  to  the  proposi 
tion  that  persons  holding  a  commission  (as  I  understood  him) 
should  not  be  treated  as  pirates,  under  the  law  of  nations, 
by  reason  of  any  particular  views  or  opinions  of  our  Govern 
ment.  I  refer  to  that  part  of  the  opinion  where  he  says  :  "  A 
Texan  armed  schooner  cannot  be  treated  as  a  pirate  under  tha 


308  TRIAL  OF  THE  OFFICERS  AND  CREW  % 

| 

Act  of  April  30th,  1790,  for  capturing  an  American  merchant 
man,  on  the  alleged  ground  that  she  was  laden  witli  provisions, 
stores,  and  munitions  of  war  for  the  use  of  the  army  of  Mexico, 
with  the  Government  of  which  Texas,  at  the  time,  was  in  a 
state  of  revolt  and  civil  war." 

Now,  undoubtedly,  Mr.  Butler  does  here  hold  that,  by  the  law 
of  nations,  in  a  controversy  between  revolting  Colonies  and  the 
parent  State,  where  our  Government  recognizes  a  state  of  war 
as  existing,  a  privateer  cannot  be  treated  as  a  pirate.  But  we 
will  come  to  the  opinion  of  the  Attorney-General  on  the 
other  proposition  we  contend  for — that  is,  in  support  of  the 
9th  section  of  the  statute,  as  far  as  it  would  "have  exposed  citi 
zens  of  the  United  States  to  the  penalty  of  piracy : 

"  In  answer  to  this  question,  I  have  the  honor  to  state  that,  in  my  opin 
ion,  the  capture  of  the  American  ship  Pocket  can  in  no  view  of  it  be  deemed 
an  act  of  piracy,  unless  it  shall  appear  that  the  principal  actors  in  the  cap 
ture  were  citizens  of  the  United  States.  The  ninth  section  of  the  Crimes  Act 
of  30th  April,  1790,  declares  'that  if  any  citizen  shall  commit  any  piracy  or 
robbery,  or  any  act  of  hostility  against  the  United  States,  or  any  citizen 
thereof,  upon  the  high  seas,  under  color  of  any  commission  from  any  foreign 
Prince,  or  State,  or  on  pretence  of  authority  from  any  person,  such  offender 
shall,  notwithstanding  the  pretence  of  any  such  authority,  be  deemed,  ad 
judged  and  taken  to  be  a  pirate,  felon  and  robber,  and  on  being  thereof 
convicted,  shall  suffer  death.'  This  provision  is  yet  in  force,  and  should  it  he 
found  that  any  of  those  who  participated  in  the  capture  of  the  Pocket  are 
American  citizens,  the  flag  and  commission  of  the  Government  of  Texas  would 
not  protect  them  from  the  charge  of  piracy." 

It  will  be  seen  here,  that  the  condition  of  belligerents  will 
not  protect  our  citizens  from  aggressions  against  our  commerce ; 
and  there  is  no  place  for  my  learned  friends  to  put  this  author 
ity,  and  this  assumed  belligerent  power  and  right,  on  any 
footing  that  must  not  make  it,  either  actually  or  in  pretence,  at 
least,  proceed  from  a  separate  contending  power.  And,  if  they 
say,  (as,  in  one  of  their  points  substantially  is  said,)  that  the  9th 
section  cannot  apply,  because  the  alleged  authority  is  not  from  a 
foreign  State,  or  a  foreign  personage,  but  from  a  personage  of 
our  own  country, — why,  then,  we  are  thrown  back  at  once  to 
the  8th  section  entirely,  and  there  is  either  no  pretence 
of  authority  at  all,  and  it  is  just  like  arguing  that  the  pirate 
accused  was  authorized  by  the  merchant  owner  of  a  vessel  in 
South  street,  to  commit  piracy,  or  we  are  mit  in  the  position, 
which  is  unquestionably  the  true  one,  that  the  9th  section  was 
intended  to  cover  all  possible  although  unimagined  forms  in 
which  the  justice  of  the  country  could  be  attempted  to  be  im 
peded  under  the  claim  of  authority. 

Now,  gentlemen,  if  the  Court  please,  I  come  to  a  con 
sideration  of  the  political  theories  or  views  on  which  these 
prisoners  are  sought  to  be  protected  against  the  penalties  of 


0  OF    THE    SCHOONER    SAVANNAH.  309 

this  law.  In  that  argument,  as  in  my  argument,  it  must  be 
assumed  that  these  penalties,  but  for  those  protections,  would 
be  visited  upon  them ;  for  we  are  not  to  be  drawn  hither  and 
thither  by  this  inquiry,  and  to  have  it  said,  at  one  time,  that 
the  crime  itself,  in  its  own  nature,  is  not  proved,  and, -at 
another  time,  that,  if  it  be  proved,  these  are  defences.  I  have 
said  all  I  need  to  say,  and  all  I  should  say,  about  the  crime 
itself.  The  law  of  the  case  on  that  point  will  be  given  to  you 
by  the  Court,  and,  if  it  should  be,  as  I  suppose  it  must,  in  ac 
cordance  with  that  laid  down  by  the  Court  in  the  Circuit  of 
Pennsylvania,  then,  as  my  learned  friend  Mr.  Brady  has  said 
of  that,  that  he  could  not  see  how  the  Jury  could  find  any 
verdict  but  guilty,  it  necessarily  follows,  if  that  is  a  sound 
view  of  the  law,  that  you  cannot  find  any  other  verdict  but 
guiltv.  I  proceed,  therefore,  to  consider  these  other  defences 
which  grow  out  of  the  particular  circumstances  of  the  piracy. 

Now,  there  are,  as  I  suggested,  three  views  in  which  this 
subject  of  the  license,  or  authority,  or  protection  against  our 
criminal  laws  in  favor  of  these  prisoners,  is  urged,  from  their 
connection  with  particular  occurrences  disclosed  in  the  evi-1 
dence.  One  is,  that  they  are  privateers ;  but  I  have  shown 
you  that,  to  be  privateers,  their  commission  must  come  from 
an  independent  nation,  or  from  an  incipient  nation,  which  our 
Government  recognizes  as  such.  Therefore,  they  fail  entirely 
to  occupy  that  explicit  and  clear  position,  under  the  law  of  the 
land,  ana  the  law  of  nations.  But,  as  they  say,  they  are  pri 
vateers  either  of  a  nation  or  a  Power  that  exists,  as  the  phrase 
is,  de  jure, — that  has  a  right,  the  same  as  we,  or  England,  or 
France, — or  of  a  Power  that  has  had  sufficient  force  and  strength 
to  establish  itself,  as  matter  of  fact.  Without  considering  the 
question  of  right,  as  recognized  under  the  system  of  nations, 
they  contend,  and  with  a  great  deal  of  force  and  earnestness,  in 
the  impression  of  their  views  upon  the  Jury,  and  great  skill 
and  discretion  in  handling  the  matter, — they  contend  that  there 
is  a  state  of  civil  war  in  this  country,  and  that  a  state  of  civil 
war  gives  to  all  nations  engaged  in  it,  against  the  Government 
with  which  they  are  warring,  rights  of  impunity,  of  protection, 
of  respect,  of  regard,  of  courtesy,  which  belong  to  the  laws  of 
war ;  and  that,  without  caring  to  say  whether  tney  are  a  Gov 
ernment,  or  ever  ^11  be  a  Government,  so  long  as  they  fight, 
they  cannot  be  punished. 

That  is  the  proposition, — there  is  nothing  else  to  it.  They 
come  down  from  the  region  of  dejure  Government  and  de  facto 
Government,  and  have  nothing  to  prove  but  the  rage  of  war  on 
the  part  of  rebels,  in  force  enough  to  be  called  war.  Then  they 
say  that,  by  their  own  act,  they  are  liberated  from  the  laws, 


310  TRIAL    OF   THE    OFFICERS    AND    CREW 

and  from  their  duty  to  the  laws,  which  would  otherwise,  they 
admit,  have  sway  over  them,  and  against  which  they  have  not 
as  yet  prevailed.  That  is  the  proposition. 

Another  proposition,  on  which  they  put  themselves,  is  that 
whatever  may  be  the  law,  and  whatever  the  extent  of  the  facts, 
if  any  of  these  persons  believed  that  there  was  a  state  of  war, 
rightful  to  be  recognized,  and  believed,  in  good  fajth,  that  they 
were  fighting  against  the  United  States  Government,  they  had 
a  right  to  seize  the  property  of  United  States'  citizens ;  and 
that,  if  they  believed  that  they  constituted  part  of  a  force  co 
operating,  in  any  form  or  effect,  with  the  military  power  which 
has  risen  up  against  the  United  States  of  America,  then,  so  long 
as  they  had  that  opinion,  they,  by  their  own  act,  and  their 
own  construction  of  their  own  act,  impose  the  law  upon  this 
Government,  and  upon  this  Bench,  and  upon  this  Jury,  and 
compel  you  to  say  to  them  that  if,  in  taking,  in  a  manner 
which  would  have  been  robbery,  this  vessel,  the  Joseph, 
they  were  also  fighting  against  the  United  States  of  America, 
they  have  not  committed  the  crime  of  piracy. 

Now,  if  the  Court  please,  and  gentlemen  of  the  Jury,  let 
us,  before  we  explore  and  dissect  these  propositions, — before  we 
discover  how  utterly  subversive  they  are  of  any  notions  of  Gov 
ernment,  of  fixity  in  the  interpretation  of  the  law,  or  certainty 
in  the  enforcement  of  it, — let  us  see  what  you  will  fairly  con 
sider  as  being  proved,  as  matter  of  fact,  concerning  the  con 
dition  of  affairs  in  this  country.  Let  us  see  what  legal  discrimi 
nation  or  description  of  this  state  of  things  is  likely  to  be  sig 
nificant  and  instructive,  in  determining  the  power  and  authority 
of  the  Government,  and  the  responsibility  of  these  defendants. 
They  began  with  an  Ordinance  of  South  Carolina,  passed  on 
the  20th  of  December  of  last  year,  which,  in  form  and  substance, 
simply  annulled  the  Ordinance  of  that  State  with]which,  as  they 
say,  they  ratified  or  accepted  the  Constitution  of  the  United 
States.  They  then  went  on  with  similar  proceedings  on  the  part 
of  the  States  of  Georgia,  Alabama,  Mississippi,  and  Florida, 
showing  the  establishment  and  adoption  of  a  Provisional  Con 
stitution,  by  which  they  constituted  and  called  themselves  the 
Confederate  States  of  America.  They  proved,  then,  the  organi 
zation  of  the  Government,  the  election  of  Mr.  Davis  and  Mr. 
Stephens  as  President  and  Yice-President,  an^i  the  appointment 
of  Secretaries  of  War,  and  of  the  Navy,  and  other  portions  of  the 
civil  establishment.  They  proved,  then,  the  occurrences  at  Fort 
Sumter,  and  gave  particular  evidence  of  the  original  acts  at 
Charleston — the  firing  on  the  Star  of  the  West,  and  the  corres 
pondence  which  then  took  place  between  Major  Anderson  and 
the  Governor  of  South  Carolina.  They  then  went  on  to  prove  the. 


OF   THE   SCHOONER    SAVANNAH.  311 

evacuation  of  Fort  Moultrie ;  the  storming  of  Fort  Sumter ;  the 
Proclamation  of  the  President  of  the  United  States,  of  the  15th 
of  April,  calling  for  75,000  troops  ;  Mr.  Davis'  Proclamation,  of 
the  17th  of  April,  inviting  privateers  ;  and  then  the  President's 
Proclamation,  of  the  19th  of  April,  denouncing  the  punishment 
of  piracy  against  privateers,  and  putting  under  blockade  the 
coasts  of  the  revolted  States.  The  laws  about  privateering 
passed  by  what  is  called  the  Confederate  Government,  have, 
also,  been  read  to  you ;  and  this  seems  to  complete  the  docu 
mentary,  and  constitutional,  and  statutory  proceedings  in  that 
disaffected  portion  of  the  country.  But  what  do  the  prisoners 
prove  further?  That  an  actual  military  conflict  and  collision 
commenced,  has  proceeded,  and  is  now  raging  in  this  country  r 
wherein  we  find,  not  one  section  of  the  country  engaged  in  a 
military  contest  with  another  section  of  the  country — not 
two  contending  factions,  in  the  phrase  of  Yattel,  dividing 
the  nation  for  the  sake  of  national  power — but  the  Gov 
ernment  of  the  United  States,  still  standing,  without  the 
diminution  of  one  tittle  of  its  power  and  dignity — without 
the  displacement  or  disturbance  of  a  single  function  of  its 
executive,  of  its  legislative,  of  its  judicial  establishments — 
without  the  disturbance  or  the  defection  of  its  army  or  its  navy 
— without  any  displacement  in  or  among  the  nations  of  the 
world — without  any  retreat,  on  its  part,  or  any  repulsion,  on  the 
part  of  any  force  whatever,  from  its  general  control  over  the 
affairs  of  the  nation,  over  all  its  relations  to  foreign  States,  over 
the  high  seas,  and  over  every  part  of  the  United  States  them 
selves,  in  their  whole  length  and  breadth,  except  just  so  far  as 
military  occupation  and  military  contest  have  controlled  the 
peaceful  maintenance  of  the  authority  and  laws  of  the  Govern 
ment. 

Now,  this  may  be  conceded  for  all  sides  of  the  controversy. 
I  do  not  claim  any  more  than  these  proofs  show,  and  what  we 
all  know  to  be  true  ;  and  I  am  but  fair  in  conceding  that  they 
do  show  all  the  proportions  and  extent  which  make  up  a  con 
test  by  the  forces  of  the  nation,  as  a  nation,  against  an  armed 
array,  with  all  the  form  and  circumstances,  and  with  a  number 
and  strength,  which  make  up  military  aggression  and  military 
attack  on  the  part  of  these  revolting  or  disaffected  communities, 
or  people. 

Now,  some  observations  have  been  made,  at  various  stages 
of  this  argument,  of  the  course  the  Government  has  taken  in 
its  declaration  of  a  blockade,  and  in  its  seizure  of  prizes  by  its 
armed  vessels,  and  its  bringing  them  before  the  Prize  Courts ; 
and  my  learned  friend,  Mr.  Brady,  has  done  me  the  favor  to  al 
lude  to  some  particular  occasion  on  which  I,  on  behalf  of  the 


312  TRIAL   OF   THE   OFFICERS    AND   CREW 

^Government,  in  the  Admiralty  Court,  have  contended  for  certain 
principles,  which  would  lead  to  the  judicial  confiscation  of  prizes, 
under  the  law  of  the  land,  or  under  the  law  of  nations 
adopted  and  enforced  as  part  of  the  law  of  the  land.  Well, 
now,  gentlemen,  I  understand  and  agree  that,  for  certain  pur 
poses,  there  is  a  condition  of  war  which  forces  itself  on  the  at 
tention  and  the  duty  of  Governments,  and  calls  on  them  to  exert 
the  power  and  force  of  war  for  their  protection  and  maintenance. 
And  I  have  had  occasion  to  contend — and  the  learned  Courts 
have  decided — that  this  nation,  undertaking  to  suppress  an 
armed  military  rebellion,  which  arrays  itself,  by  land  and  by 
sea,  in  the  forms  of  naval  and  military  attack,  has  a  right  to 
exert — under  the  necessary  principles  which  control  and  re 
quire  the  action  of  a  nation  for  its  own  preservation,  in  these 
circumstances  of  danger  and  of  peril — not  only  the  usual  magis 
terial  force  of  the  country — not  only  the  usual  criminal  laws — 
not  only  such  civil  posses  or  aids  to  the  officers  of  the  law  as 
may  be  obtained  for  their  assistance — but  to  take  the  army  and 
the  navy,  the  strength  and  the  manhood  of  the  nation,  which 
it  can  rally  around  it,  and  in  every  form,  arid  by  every  author 
ity,  human  and  divine,  suppress  and  reduce  a  revolt,  a  rebell 
ion,  a  treason,  that  seeks  to  overthrow  this  Government  in,  at 
least,  a  large  portion  of  its  territory,  and  among  a  large  portion 
of  its  people.  In  doing  so,  it  may  resort — as  it  has  resorted— 
to  the  method  of  a  warlike  blockade,  which,  by  mere  force  of 
naval  obstruction,  closes  the  harbors  of  the  disaffected  portion 
of  the  country  against  all  commerce.  Having  done  that,  it  has 
a  right,  in  its  Admiralty  Courts,  to  adjudicate  upon  and  con 
demn  as  prizes,  under  the  laws  of  blockade,  all  vessels  that  shall 
seek  to  violate  the  blockade.  Nor,  gentlemen,  have  I  ever  de 
nied — nor  shall  I  here  deny — that,  when  the  proportions  of  a 
civil  dissension,  or  controversy,  come  to  the  port  and  dignity  of 
Tvar,  good  sense  and  common  intelligence  require  the  Govern 
ment  to  recognize  it  as  a  question  of  fact,  according  to  the  actual 
.circumstances  of  the  case,  and  to  act  accordingly.  I,  therefore, 
hasro  no  difficulty  in  conceding  that,  outside  of  any  question  of 
law  and  right — outside  of  any  question  as  to  whether  there  is  a 
^Government  down  there,  whether  nominal  or  real,  or  that  can 
;be  described  as  having  any  consistency  of  any  kind,  under 
our  law  and  our  Government — there  is  prevailing  in  this 
country  a  controversy,  which  is  carried  on  by  the  methods, 
and  which  has  the  proportions  and  extent,  of  what  we  call 
war. 

War,  gentlemen,  as  distinguished  from  peace,  is  so  distin 
guished  by  this  proposition — that  it  is  a  condition  in  which  force 
on  one  side  and  force  on  the  other  are  the  means  used  in  the 


OF   THE   SCHOONER   SAVANNAH.  313 

actual  prosecution  of  the  controversy.  Now,  gentlemen,  if 
the  Court  please,  I  believe  that  that  is  all  that  can  be  claimed, 
and  all  that  has  been  claimed,  on  behalf  of  these  prisoners,  in 
regard  to  the  actual  facts,  and  the  condition  of  things  in  this 
country.  And  I  admit  that,  if  this  Government  of  ours  were  not 
a  party  to  this  controversy, — if  it  looked  on  it  from  the  outside, 
as  England  and  France  have  done, — our  Government  would 
have  had  the  full  right  to  treat  these  contending  parties,  in  its 
Courts  and  before  its  laws,  as  belligerents,  engaged  in  hostili 
ties,  as  it  would  have  had  an  equal  right  to  take  the  opposite 
course.  Which  course  it  would  have  taken,  I  neither  know, 
nor  should  you  require  to  know. 

But,  I  answer  to  the  whole  of  this,  if  the  Court  please,  that 
it  is  a  war  in  which  the  Government  recognizes  no  right  what 
ever  on  the  part  of  the  persons  with  whom  it  is  contending  ;  and 
that,  in  the  eye  of  the  law,  as  well  as  in  the  eye  of  reason  and 
sound  political  morality,  every  person  who  has,  from  the  be 
ginning  of  the  first  act  of  levying  war  against  the  United  States 
until  now,  taken  part  in  this  war,  actively  and  effectively,  in 
any  form — who  has  adhered  to  the  rebels — who  has  given  aid, 
information,  or  help  of  any  kind,  wherever  he  lives,  whether 
he  sends  it  from  New  Hampshire  or  New  York,  from  Wiscon 
sin  or  from  Baltimore — whether  he  be  found  within  or  without 
the  armed  lines — is,  in  his  own  overt  actions,  or  open  espousal  of 
the  side  of  this  warring  power,  against'the  Government  of  the 
United  States,  a  traitor  and  a  rebel.  I  do  not  know  that  there 
is  any  proposition  whatever,  of  law,  or  any  authority  whatever, 
that  has  been  adduced  by  my  learned  friends,  in  which  they 
will  claim,  as  matter  of  law,  that  they  are  not  rebels.  I  invited 
the  attention  of  my  learned  friends,  as  1  purposed  to  call  that 
of  the  Court,  to  the  fact,  that  the  difficulty  about  all  this  busi 
ness  was,  that  the  plea  of  authority  or  of  war,  which  these  pris 
oners  interposed  against  the  crime  of  piracy,  was  nothing  but  a 
plea  of  their  implication  in  treason.  1  would  like  to  hear  a  so 
ber  and  solemn  proposition  from  any  lawyer,  that  a  Govern 
ment,  as  matter  of  law,  and  a  Court,  as  matter  of  law,  can 
not  proceed  on  an  infraction  of  a  law  against  violence  either 
to  person  or  property,  instead  of  proceeding  on  an  indictment 
for  treason.  The  facts  proved  must,  of  course,  maintain  the 
personal  crime ;  and  there  are  many  degrees  of  treason,  or  facts 
of  treason,  which  do  not  include  violent  crime.  But,  to  say 
that  a  person  who  has  acted  as  a  rebel  cannot  be  indicted  as 
an  assassin,  or  that  a  man  who  has  acted,  on  the  high  seas,  as 
a  pirate,  if  our  statutes  so  pronounce  him,  cannot  be  indicted, 
tried  and  convicted  as  a  pirate,  because  he  could  plead,  as  the 
shield  of  his  piracy,  that  he  committed  it  as  part  ot  his  treason, 


314:  TRIAL   OF   THE   OFFICERS    AND    CREW 

is,  to  my  apprehension,  entirely  new,  and  inconsistent  with  the 
first  principles  of  justice. 

£s  ow,  this  very  statute  of  piracy  is  really  a  general  Crimes 
Act.  The  first  section  is  : 

"If  any  person  or  persons  owing  allegiance  to  the  United  States  of 
America  shall  levy  war  against  them,  or  shall  adhere  to  their  enemies,  giving 
them  aid  and  comfort  within  the  United  States,  or  elsewhere,  and  shall  be 
thereof  convicted,"  "  such  person  or  persons  shall  be  adjudged  guilty  of 
treason  against  the  United  States,  and  shall  suffer  death." 

Now,  you  will  observe  that  treason  is  not  a  defence  against 
piracy ;  nor  is  good  faith  in  treason  a  defence  against  treason, 
or  a  aefence  against  piracy.  What  would  be  the  posture  of 
these  prisoners,  if,  instead  of  being  indicted  for  piracy,  they 
were  indicted  for  treason?  Should  we  then  hear  anything 
about  this  notion  that  there  was  a  war  raging,  and  that  they 
were  a  party  engaged  in  the  war  ?  Why,  that  is  the  very  de 
finition  of  treason.  Against  whom  is  the  war  ?  Against  the 
United  States  of  America.  Did  you  owe  allegiance  to  the 
United  States  of  America  ?  Yes,  the  citizens  did  ;  and  I  need 
not  say  to  you,  gentlemen,  that  those  residents  who  are  not  citi 
zens  owe  allegiance.  There  is  no  dispute  about  that.  Those 
foreigners  who  are  living  here  unnaturalized  are  just  as  much 
guilty  of  treason,  if  they  act  treasonably  against  the  Govern 
ment,  as  any  of  our  own  citizens  can  be.  That  is  the  law  of 
England,  the  law  of  treason,  the  necessary  law  of  civilized 
communities.  If  we  are  hospitable,  if  we  make  no  distinction, 
as  we  do  not,  in  this  country,  between  citizens,  and  foreigners 
resident  here  and  protected  by  our  laws,  it  is  very  clear  we 
cannot  make  any  distinction  when  we  come  to  the  question  of 
who  are  faithful  to  the  laws.  So,  therefore,  if  they  were  in 
dicted  for  treason,  what  would  become  of  all  this  defence  ?  It 
would  be  simply  a  confession  in  open  Court  that  they  were 
guilty  of  treason.  Well,  then,  if  they  fell  back  on  the  proposi 
tion, — "  We  thought,  in  our  consciences  and  judgments,  that 
either  these  States  had  a  right  to  secede,  or  that  they  had  a  right 
to  carry  on  a  revolution  ;  that  they  were  oppressed,  and  were 
entitled  to  assert  themselves  against  an  oppressive  Government, 
and  we,  in  good  faith,  and  with  a  fair  expectation  of  success, 
entered  into  it," — what  would  become  of  them  ?  The  answer 
would  be,  "Good  faith  in  your  attempt  to  overthrow  the 


faith  or  in  bad  faith,  for  its  overthrow. 

And  now,  in  this  connection,  gentlemen,  as  your  attention, 
as  well  as  that  of  the  Court,  has  been  repeatedly  called  to  it. 


OF   THE    SCHOONER    SAVANNAH.  315 

let  me  advert  again  to  the  citation  from  that  enlightened  public 
writer,  Vattel,  who  has  done  as  much,  perhaps,  as  our  learned 
friends  have  suggested,  to  place  on  a  sure  foundation  the 
amelioration  of  the  law  of  nations  in  time  of  war,  and  their 
intercourse  in  time  of  peace,  as  any  writer  and  thinker  whom 
our  race  has  produced.  You  remember,  that  he  asks — How 
shall  it  be,  when  two  contending  factions  divide  a  State, 
in  all  the  forms  and  extent  of  civil  war — what  shall  be  the 
right  and  what  the  duty  of  a  sovereign  in  this  regard  ?  Shall 
he  put  himself  on  the  pride  of  a  king,  or  on  the  flattery  of  a 
courtier,  and  say,  I  am  still  monarch,  and  will  enforce  against 
every  one  of  this  multitude  engaged  in  this  rebellion  the 
strict  penalties  of  my  laws  ?  Yattel  reasons,  and  reasons  very 
properly  :  You  must  submit  to  the  principles  of  humanity 
and  of  justice ;  you  must  govern  your  conduct  by  them, 
and  not  proceed  to  an  extermination  of  your  subjects  because 
they  have  revolted,  whether  with  or  without  cause.  You 
must  not  enforce  the  sanctions  of  your  Government,  or  maintain 
its  authority,  on  methods  which  would  produce  a  destruction  of 
your  people.  And  you  must  not  further,  by  insisting,  under 
the  enforced  circumstances  which  surround  you,  on  the  extreme 
and  logical  right  of  a  king,  furnish  occasion  for  the  contending 
rebels,  who  have  their  moments  of  success  and  power,  as  well 
as  you,  to  retaliate  on  your  loyal  people,  victims  of  their  strug 
gle  on  your  behalf,  and  thrown  into  the  power  of  your  rebel 
lious  subjects, — to  retaliate,  I  say,  on  them  the  same  extreme 
penalties,  without  right,  without  law,  but  by  mere  power,  which 
you  have  exerted  under  your  claim  of  right. 

And  now,  gentlemen  of  the  Jury,  as  the  Court  very  well 
understands,  this  general  reasoning,  which  should  govern  the 
conduct  of  a  Sovereign,  or  of  a  Government,  against  a  mere 
local  insurrection,  does  not  touch  the  question  as  to  whether  the 
law  of  the  nation  in  which  the  Sovereign  presides,  and  in  vio 
lation  of  which  the  crime  of  the  rebels  has  been  perpetrated, 
shall  be  enforced.  There  has  been,  certainly,  in  modern  times, 
no  occasion  when  a  Sovereign  has  not  drawn,  in  his  discretion, 
and  under  the  influence  of  these  principles  of  humanity  and 
justice,  this  distinction,  and  has  not  interposed  the  shield  of 
his  own  mercy  between  the  offences  of  misled  and  misguided 
masses  of  his  people  and  offended  laws.  We  know  the  differ 
ence  between  law  and  its  condemnation,  and  mercy  and  its 
saving  grace ;  and  we  know  that  every  Government  exercises 
its  discretion.  And,  I  should  like  to  know  why  these  learned 
counsel,  who  are  seeking  to  interpose,  as  a  legal  defence  on  the 
part  of  a  criminal,  the  principles  of  policy  and  mercy  which  should 
guide  the  Government,  are  disposed  to  insist  that  this  Govern 
ment,  in  its  prosecutions  and  its  trials,  has  shown  a  disposition 


316  TRIAL   OF   THE   OFFICERS    AND   CREW 

to  absolve  great  masses  of  criminals  from  the  penalties  of  its 
laws.  I  should  like  to  know,  when  my  learned  friend  Mr. 
Brady,  near  the  close  of  his  remarks,  suggested  that  there  had 
been  no  trial  for  treason,  whether  this  Government,  from  the 
first  steps  iii  the  outbreak,  down  to  the  final  and  extensive 
rage  of  the  war,  has  not  foreborne  to  take  satisfaction  for  the 
wrongs  committed  against  it,  and  has  not  been  disposed  to 
carry  on  and  sustain  the  strength  of  the  Government,  without 
bloody  sacrifices  for  its  maintenance,  and  for  the  offended  jus 
tice  of  the  land.  But  it  is  certainly  very  strange  if,  when  a 
Government  influenced  by  those  principles  of  humanity  of 
which  Yattel  speaks,  and  which  my  learned  friends  so  much 
insist  upon,  has  foreborne,  except  in  signal  instances,  or,  if  you 
please,  in  single  instances  that  are  not  signal,  to  assert  the  stand 
ard  of  the  law's  authority  and  of  the  Government's  right, — 
that  it  may  be  seen  that  the  sword  of  justice,  although  kept 
sheathed  for  the  most  part,  has  yet  not  rusted  in  its  scabbard, 
and  that  the  Government  is  not  faithless  to  itself,  or  to  its  laws, 
its  powers,  or  its  duties,  in  these  particular  prosecutions  that 
have  been  carried,  one  to  its  conclusion,  in  Philadelphia,  and 
the  other  to  this  stage  of  its  progress,  here, — it  is  strange, 
indeed,  that  the  appeal  is  to  be  thrust  upon  it — "Do  not  include 
the  masses  of  the  misguided  men  I"  and,  when  it  yields  so 
mercifully  to  that  appeal,  and  says — "  I  will  limit  myself  to 
the  least  maintenance  and  assertion  of  a  right,"  that  the  answer 
is  to  come  back :  "  Why,  how  execrable — how  abominable,  to 
make  distinctions  of  that  kind !" 

But,  gentlemen,  the  mercy  of  the  Government,  as  I  have 
said  to  you,  remains  after  conviction,  as  well  as  in  its  determi 
nation  not  to  press  numerous  trials  for  treason  ;  but  it  is  an 
attribute,  both  in  forbearing  to  try  and  in  forbearing  to  exe 
cute,  which  is  safely  left  where  the  precedents  that  are  to 
shape  the  authority  of  law  cannot  be  urged  against  its  exercise. 
Now,  I  look  upon  the  conduct  and  duty  of  the  Government  on 
somewhat  larger  considerations  than  have  been  pressed  before 
you  here.  The  Government,  it  is  said,  does  not  desire  the  con 
viction  of  these  men,  or,  at  least,  should  not  desire  it.  The 
Government  does  not  desire  the  blood  of  any  of  its  misguided 
people.  The  Government — the  prosecution — should  have  no 
passion,  no  animosities,  in  this  or  in  any  other  case ;  and  our 
learned  friends  have  done  us  the  favor  to  say  that  the  case  is 
presented  to  you  as  the  law  should  require  it  to  be  ;  that  you, 
and  all,  are  unaffected  and  unimpeded  in  your  judgment ;  and 
that,  with  a  full  hearing  of  what  could  be  said  on  the  part  of 
these  criminals,  you  have  the  case  candidly  and  openly  before 
you. 

Now,  gentlemen,  the  Government,  although  having  a  large 


OF   THE   SCHOONER   SAVANNAH.  317 

measure  of  discretion,  has  no  right,  in  a  country  where  the 
Government  is  one  wholly  of  law,  to  repeal  the  criminal  law, 
and  no  right  to  leave  it  without  presenting  it  to  the  observation, 
the  understanding,  and  the  recognition  of  all  its  citizens, 
whether  in  rebellion  or  not,  in  its  majesty,  in  its  might,  and  in 
its  impartiality.  The  Government  has  behind  it  the  people, 
and  it  has  behind  it  all  the  great  forces  which  are  breathing  on 
our  agitated  society,  all  the  strong  passions,  all  the  deep  emo 
tions,  all  the  powerful  convictions,  which  impress  the  loyal 
people  of  this  country  as  to  the  outrage,  as  to  the  wickedness, 
as  to  the  perils  of  this  great  rebellion.  Do  you  not  recollect 
how,  when  the  proclamation  of  Mr.  Davis  invited  marauders 
to  prey  upon  our  commerce,  from  whatever  quarter  and  from 
whatever  motives — (patriotism  and  duty  not  being  requisite 
before  they  would  be  received) — the  cry  of  the  wounded  sensi 
bilities  of  a  great  commercial  people  burst  upon  this  whole 
scene  of  conflict  ?  What  was  there  that  as  a  nation  we  had 
more  to  be  proud  of,  more  to  be  glad  for  in  our  history,  than 
our  flag  ?  To  think  that  in  an  early  stage  of  what  was  claimed 
to  be  first  a  constitutional,  and  then  a  peaceful,  and  then  a  de 
liberate  political  agitation  and  maintenance  of  right,  this  last 
extreme  act,  the  arming  of  private  persons  against  private 
property  on  the  sea,  was  appealed  to  before  even  a  force  was 
drawn  on  the  field  on  behalf  of  the  United  States  of  America ! 
The  proclamation  of  the  President  was  but  two  days  old  when 
privateers  were  invited  to  rush  to  the  standard.  The  indig 
nation  of  the  community,  the  sense  of  outrage  and  hatred  was 
so  severe  and  so  strong,  that  at  that  time,  it  the  sentiment  of 
the  people  had  been  consulted,  it  would  have  found  a  true 
expression  in  what  was  asserted  in  the  newspapers,  in  public 
speeches,  in  private  conversations — that  the  duty  of  every 
merchantman  and  of  every  armed  vessel  of  the  country,  whicn 
arrested  any  of  these  so-called  privateers,  under  this  new  com 
mission,  without  a  nation  and  without  authority,  was,  to  treat 
them  as  pirates  caught  in  the  act,  and  execute  them  at  the 
yard-arm  by  a  summary  justice. 

Well,  I  need  not  say  to  you,  gentlemen,  that  I  am  sure  you 
and  I  and  all  of  us  would  have  have  had  occasion  to  regret, 
in  every  sense,  as  wrong,  as  violent,  as  unnecessary,  and,  there 
fore,  as  wholly  unjustifiable,  on  the  part  of  a  powerful  nation 
like  ourselves,  any  such  rash  execution  of  the  penalties  of 
the  law  of  nations,  and  of  the  law  of  the  land,  while 
our  Government  had  power  on  the  sea,  had  authority  on  the 
land,  had  Courts  and  laws  and  juries  under  its  authority  to 
inquire  and  look  into  the  transaction. 

The  public  passions  on  this  subject  being  all  cool  at  this 


318  TRIAL   OF   THE   OFFICERS    AND   CREW 

time,  after  an  interval  of  four  months  or  more  from  the  arrest, 
we  are  here  trying  this  case.  Yet  my  learned  friends  can  find 
complaint  against  the  mercy  of  the  Government  and  its  jus 
tice,  that  it  brings  any  prosecution ;  and  great  complaint  is 
made  before  yon,  without  the  least  ground  or  cause,  as  it  seems 
to  me,  that  the  prosecution  is  pressed  in  a  time  of  war,  when 
the  sentiments  of  the  community  are  supposed  to  be  inflamed. 

Well,  gentlemen,  what  is  the  duty  of  Government,  when  it 
has  brought  in  prisoners  arrested  on  the  high  seas,  but  to  de 
liver  them  promptly  to  the  civil  authorities,  as  was  done  in  this 
case — and  then,  in  the  language  of  the  Constitution,  which  se 
cures  the  right  to  them,  to  give  them  a  speedy  and  impartial  trial? 
That  it  is  impartial,  they  all  confess.  How  speedy  is  it?  They 
say,  they  regret  that  it  proceeds  in  time  of  war.  Surely,  our 
learned  friends  do  not  wish  to  be  understood  as  having  had  de 
nied  to  them  in  this  Court  any  application  which  they  have  made 
for  postponement.  The  promptness  of  the  judicial  and  prosecut 
ing  authorities  here  had  produced  this  indictment  in  the  month 
of  June,  I  believe,  the  very  month  in  which  the  prisoners  were 
arrested,  or  certainly  early  in  July ;  and  then  the  Government 
was  ready  to  proceed  with  the  trial,  so  far  as  I  am  advised.  But, 
at  any  rate,  an  application — a  very  proper  and  necessary  appli 
cation — was  made  by  our  learned  friends,  that  the  trial  should 
be  postponed  till,  I  believe,  the  very  day  on  which  it  was 
brought  on.  That  application  was  not  objected  to,  was  acquiesced 
in,  and  the  time  was  fixed,  and  no  further  suggestion  was 
made  that  the  prisoners  desired  further  delay ;  and,  if  the 
Government  had  undertaken  to  ask  for  further  delay,  on  the 
ground  of  being  unprepared,  there  was  no  fact  to  sustain  any 
such  application.  If  it  was  the  wish  of  the  prisoners,  or  for 
their  convenience,  that  there  should  be  further  delay,  it  was 
for  them  to  suggest  it.  But,  being  entitled  by  the  Constitution 
to  a  speedy  as  well  as  an  impartial  trial,  and  the  day  being 
fixed  by  themselves  on  which  they  would  be  ready,  and  they 
being  considered  ready,  and  no  difficulty  or  embarrassment  in 
the  way  .of  proof  having  been  suggested  on  the  part  of  the 
Government,  it  seems  to  me  very  strange  that  this  regret 
should  be  expressed,  unless  it  should  take  that  form  of  regret 
which  all  of  us  participate  in,  that  the  war  is  not  over.  That, 
I  agree,  is  a  subject  of  regret.  But  how  there  has  ever  been 
any  pressure,  or  any — the  least — exercise  of  authority  adverse 
to  their  wishes  in  this  matter,  it  is  very  difficult  for  me  to  un 
derstand. 

Now,  gentlemen,  I  approach  a  part  of  this  discussion  which 
I  confess  I  would  gladly  decline.  1  have  not  the  least  objection 
— no  one,  I  am  sure,  can  feel  the  least  objection — to  the  privi- 


OF   THE   SCHOONER   SAVANNAH.  319 

lege  or  supposed  duty  of  counsel,  who  are  defending  prisoners  on 
a  grave  charge, — certainly  not  in  a  case  which  includes,  as  a  pos 
sible  result,  the  penalty  of  their  client's  lives, — to  go  into  all 
the  inquiries,  discussions  and  arguments,  however  extensive, 
varied,  or  remote,  that  can  affect  the  judgment  of  the  Jury, 
properly  or  fairly,  or  that  can  rightly  be  invoked.  But,  I  con 
fess  that,  looking  at  the  very  interesting,  able,  extensive  and 
numerous  arguments,  theories  and  illustrations,  that  have  been 
presented  in  succession  by,  I  think,  in  one  form  or  another, 
seven  counsel  for  these  prisoners,  as  the  introduction  into  a 
judicial  forum,  and  before  a  Jury,  of  inquiries  concerning 
the  theories  of  Government,  the  course  of  politics,  the  occa 
sion  of  strife  on  one  side  or  the  other,  within  the  region  of 
politics  and  the  region  of  peace,  in  any  portion  of  the  great 
communities  that  composed  this  powerful  nation — in  that  point 
of  view,  I  aver,  they  seem  to  me  very  little  inviting  and 
instructive,  as  they  certainly  are  extremely  unusual  in  forensic 
discussions.  Certainly,  gentlemen  of  the  Jury,  we  must  con 
ceive  some  starting  point  somewhere  in  the  stability  of  human 
affairs,  as  they  are  entrusted  to  the  control  and  defence  of 
human  Governments.  But,  in  the  very  persistent  and  resolute 
views  of  the  learned  counsel  upon  this  point — first  on  the  right 
of  secession  as  constitutional;  second,  if  not  constitutional,  as 
being  supposed  by  somebody '  to  be  constitutional ;  third,  on 
the  right  of  revolution  as  existing  on  the  part  of  a  people  op 
pressed,  or  deeming  themselves  oppressed,  to  try  their  strength 
in  the  overthrow  of  the  subsisting  Government ;  fourth,  on 
the  right  to  press  the  discontents  inside  of  civil  war;  and 
then  finally  and  at  last,  that  whoever  thinks  the  Government 
oppresses  him,  or  thinks  that  a  better  Government  would  suit 
his  case,  has  not  only  the  'right  to  try  the  venture,  but  that, 
unsuccessful,  or  at  any  stage  of  the  effort,  his  right  becomes 
so  complete  that  the  Government  must  and  should  surrender  at 
once  and  to  every  attempt — I  see  only  what  is  equivalent  to  a 
subversion  of  Government,  and  to  saying  that  the  right  of 
revolution,  in  substance  and  in  fact,  involves  the  right  of  Gov 
ernment  in  the  first  place,  and  its  duty  in  the  second  place,  to 
surrender  to  the  revolutionist,  and  to  treat  him  as  having  over 
thrown  it  in  point  of  law,  and  in  contemplation  of  its  duty. 
That  is  a  proposition  which  I  cannot  understand. 

Nevertheless,  gentlemen,  these  subjects  have  been  so  ex 
tensively  opened,  and  in  so  many  points  attacks  have  been 
made  upon  what  seems  to  me  not  only  the  very  vital  structure 
and  necessary  support  of  this,  our  Government,  but  the  very 
necessary  and  indispensable  support  of  any  Government  what 
ever,  and  we  have  been  so  distinctly  challenged,  both  on  the 
ground  of  an  absolute  right  to  overthrow  this  Government,  when-  • 


320  TRIAL    OF   THE    OFFICERS    AND    CREW 

ever  any  State  thinks  fit — and,  next,  upon  the  clear  right,  on 
general  principles  of  human  equity,  of  each  State  to  raise  itself 
against  any  Government  with  which  it  is  dissatisfied — and 
upon  the  general  right  of  conscience — as  well  as  on  the  complete 
support  by  what  has  been  assumed  to  have  been  the  parallel 
case,  on  all  those  principles,  of  the  conduct  of  the  Colonies 
which  became  the  United  States  of  America  and  established 
our  Government — that  I  shall  find  it  necessary,  in  the  discharge 
of  my  duty,  to  say  something,  however  briefly,  on  that  subject. 
Now,  gentlemen,  these  are  novel  discussions  in  a  Court  of 
Justice,  within  the  United  States  of  America.  We  have  talked 
about  the  oppressions  of  other  nations,  and  rejoiced  in  our  ex 
emption  from  all  of  them,  under  the  free,  and  benignant,  and 
powerful  Government  which  was,  by  the  favor  of  Providence, 
established  by  the  wisdom,  and  courage,  and  virtue  of  our  an 
cestors.  We  had,  for  more  than  two  generations,  reposed  un 
der  the  shadow  of  our  all-protecting  Government,  with  the  same 
conscious  security  as  under  the  firmament  of  the  heavens.  We 
knew,  to  be  sure,  that  for  all  that  made  life  hopeful  and  valu 
able — for  all  that  made  life  possible — we  depended  upon  the 
all-protecting  power,  and  the  continued  favor  of  Divine  Provi 
dence.  We  knew,  just  as  well,  that,  without  civil  society,  with 
out  equal  and  benignant  laws,  without  the  administration  of 
justice,  without  the  maintenance  of  commerce,  without  a  suit 
able  Government,  without  a  powerful  nationality,  all  the  mo 
tives  and  springs  of  human  exertion  and  labor  would  be  dried 
up  at  their  source.  But  we  felt  no  more  secure  in  the  Divine 
promise  that  "  summer  and  winter,  seed-time  and  harvest," 
should  not  cease,  than  we  did  in  the  permanent  endurance  of 
that  great  fabric  established  by  the  wisdom  and  the  courage  of 
a  renowned  ancestry,  to  be  the  habitation  of  liberty  and  justice 
for  us  and  our  children  to  every  generation.  We  felt  no  solici 
tude  whatever  that  this  great  structure  of  our  constituted  lib 
erties  should  pass  away  as  a  scroll,  or  its  firm  power  crumble 
in  the  dust.  But,  by  the  actual  circumstances  of  our  situation, 
— and,  if  not  by  them,  certainly  by  the  destructive  theories 
which  are  presented  for  your  consideration, — it  becomes  neces 
sary  for  us,  as  citizens,  and,  in  the  judgment  at  least  of  the 
learned  counsel,  for  these  prisoners,  for  you,  and  for  this  learned 
Court,  in  the  conduct  of  this  trial,  and  in  the  disposition  of  the 
issue  of  "  guilty"  or  "  not  guilty"  as  to  these  prisoners,  to  pay 
some  attention  to  these  considerations.  If,  in  the  order  of 
this  discussion,  gentlenien,  1  should  not  seem  to  follow  in 
any  degree,  or  even  to  include  by  name,  many  of  the  prop 
ositions,  of  the  distinctions,  and  of  the  arguments  which  our 
learned  friends  have  pressed  against  the  whole  solidity,  the 
whole  character,  the  whole  permanence,  the  whole  strength  of 


OF  THE   SCHOONER   SAVANNAH.  321 

our  Government,  I  yet  think  you  will  find  that  I  have  included 
the  principal  ideas  they  have  advanced,  and  have  commented 
upon  the  views  that  seem  to  us — at  least  so  far  as  we  think 
them  to  be  at  all  connected  with  this  case— suitable  to  be  con 
sidered. 

Now,  gentlemen,  let  us  start  with  this  business  where  our 
friends,  in  their  argument,  where  many  of  the  philosophers, 
and  partisans,  and  statesmen  of  the  Southern  people,  have  found 
many  of  their  grounds  of  support.     Let  us  start  with  this  very 
subject  of  the  American  Revolution,  with  the  condition  that 
we  were  in,  and  with  the  place  that  we  found  ourselves  raised 
to,  among  the  nations  of  the  earth,  as  the  result  of  that  great 
transaction  in  the  affairs  of  men.     What  were  we  before  the 
Revolution  commenced  ?    Was  any  one  of  the  original  thirteen 
States  out  of  which  our  nation  was  made,  and  which,  previous 
to  the  Revolution,  were  Colonies  of  Great  Britain — wa*s  any  one 
of  them^n  independent  nation  at  the  time  they  all  slumbered 
under  the  protection  of  the  British  Crown  ?     Why,  not  only 
had  they  not  the  least  pretension  to  be  a  nation,  any  of  them, 
but  they  had  scarcely  the  position  of  a  thoroughly  incorporated 
part  of  the  great  nation  of  England.     Now,  how  did  they  stand 
towards  the  British  power,  and  under  what  motives  of  dignity, 
and  importance,  and  necessity  did  they  undertake  their  sever 
ance  from  the  parent  country  ?     With  all  their  history  of  colo 
nization,  the  settlement  of  their  different  charters,  and  the 
changes  they  went  through,  I  will  not  detain  you.     For  gener 
al  purposes,  we  all  know  enough,  and  I,  certainly  not  more 
than  the  rest  of  you.     This,  however,  was  their  condition.     The 
population  were  all  subjects  of  the  British  Crown  ;  and  they  all 
had  forms  of  local  Government  which  they  had  derived  from 
the  British  Crown  ;  and  they  claimed  and  possessed,  as  I  sup 
pose,  all  the  civil  and  political  rights  of  Englishmen.     They 
were  not  subject  to  any  despotic  power,  but  claimed  and  pos 
sessed  that  right  to  a  share  in  the  Government,  which  was  the 
privilege  of  Englishmen,  and  under  which  they  protected  them 
selves  against  the  encroachment  of  the  Crown.     But,  in  Eng 
land,  as  you  know,  the  monarch  was  attended  by  his  Houses  of 
Parliament,  and  all  the  power  of  the  Government  was  con 
trolled  by  the   people,  through  their  representatives  in  the 
House  of  Commons.     And  how  ?     Why,  because,  although  the 
King  had  prerogatives,  executive  authority,  a  vast  degree  of 
pomp  and  wealth,  and  of  strength,  yet  the  people,  represented 
in  the  House  of  Commons,  by  controlling  the  question  of  taxa 
tion,  held  all  the  wealth  of  the  kingdom — the  power  of  the 
purse,   as   it   was   described — and   without  supplies,  without 
money  for  the  army,  for  the  navy,  for  all  the  purposes  of  Gov 
ernment,  what  authority,  actual  and  effective,  had  the  Crown 
21 


322  TRIAL   OF  THE   OFFICERS   AND  CREW 

of  England  ?  These  were  the  rights  of  Englishmen  ;  these 
made  them  a  free  people,  not  subject  to  despotic  power.  They 
cherished  it  and  loved  it.  Now,  what  relation  did  these  Colo 
nies,  becoming  off-shoots  from  the  great  fabric  of  the  national 
frame  of  England,  bring  with  them,  and  assert,  and  enjoy  here? 
"Why,  the  king  was  their  king,  just  as  he  was  the  king  of  the 
people  whom  they  left  in  England,  but  they  had  their  legisla 
tures  here,  which  made  their  laws  fur  them  in  Massachusetts, 
in  Connecticut,  in  Virginia,  in  South  Carolina,  and  in  the  rest 
of  these  provinces ;  and  among  those  laws,  in  the  power  of  law- 
making,  they  had  asserted,  and  possessed,  and  enjoyed  the 
right  of  laying  taxes  for  the  expenses  and  charges  of  their  Gov 
ernment.  They  formed  no  part  of  the  Parliament  of  England, 
but,  as  the  subjects  of  England  within  the  four  seas  were  obedi 
ent  to  the  king,  and  were  represented  in  the  Parliament  that 
made  laws  for  them,  the  Colonies  of  America  were  subject  to 
the  king,  but  had  local  legislatures,  to  pass  laws,  ^aise  and 
levy  taxes,  and  graduate  the  expenses  and  contributions  which 
they  would  bear. 

Now,  gentlemen,  it  is  quite  true  that  the  local  legislatures 
were  subject  to  the  revision,  as  to  their  statutes,  to  a  certain 
extent,  of  the  sovereign  power  of  England.  The  king  had 
the  veto  power — as  he  had  the  veto  power  over  Acts  of  Par 
liament — the  power  of  revision — and  other  powers,  as  may 
have  been  the  casual  outgrowth  of  the  forms  of  different  char- 
tersi  In  an  evil  hour — as  these  Colonies,  from  being  poor, 
despised,  and  feeble  communities,  gained  a  strength  and  num 
bers  that  attracted  the  attention  of  the  Crown  of  England,  as 
important  and  productive  communities,  capable  of  being  taxed 
— the  Government  undertook  to  assert,  as  the  principle  of  the 
Constitution  of  England,  that  the  king  and  Parliament,  sitting 
in  London,  could  tax  as  they  pleased,  when  they  pleased,  and 
in  the  form,  and  on  the  subjects,  and  to  the  amount,  they 
pleased,  the  free  people  of  these  Colonies.  Now,  you  will 
understand,  there  was  not  an  incidental,  a  casual,  a  limited 
subject  of  controversy,  of  right,  of  danger,  but  there  was 
an  attack  upon  the  first  principles  of  English  liberty,  which 
prevented  the  English  people  from  being  the  subjects  of  a  des 
pot,  and  an  attempt  to  make  us  subject  to  a  despotic  Gov 
ernment,  in  which  we  took  no  share,  and  in  which  we  had 
no  control  of  the  power  of  the  purse.  What  matter  did  it  make 
to  us  that,  instead  of  there  being  a  despotic  authority,  in  which 
we  had  no  share  or  representation  of  vote  or  voice,  exercised 
by  the  king  alone,  it  was  exercised  by  the  king  and  Parlia 
ment  ?  They  were  both  of  them  powers  of  Government  that  were 
away  from  us,  and  in  which  we  had  no  share ;  and  we,  then,  fore 
warned  by  the  voices  of  the  great  statesmen  whose  sentiments 


OF  THE   SCHOONER   SAVANNAH.  323 

have  been  read  to  you,  saw  in  time  that,  whatever  might  be 
said  or  thought  of  the  particular  exercise  of  authority,  the  pro 
position  was  that  we  were  not  entitled  to  the  privilege  and  free 
dom  of  Englishmen,  but  that  the  power  was  confined  to  those 
who  resided  within  the  four  seas — within  the  islands  that  made 
up  that  Kingdom — and  that  we  were  provinces  which  their  King 
and  their  Parliament  governed.  Therefore,  you  may  call  it  a 
question  of  taxation,  and  my  friend  may  call  it  "  a  question  of 
three  pence  a  pound  on  tea;"  but  it  was  the  proposition  that 
the  power  of  the  purse,  in  this  country,  resided  in  England. 
We  had  not  been  accustomed  to  it.  We  did  not  believe  in  it. 
And  our  first  revolutionary  act  was  to  fight  for  our  rights  as 
Englishmen  (subject  to  the  King,  whose  power  we  admitted), 
and  to  assert  the  rights  of  our  local  legislature  in  the  overthrow 
of  this  usurpation  of  Parliament.  Now,  of  the  course  which 
we  took  before  we  resorted  to  the  violence  and  vehemence  of 
war,  I  shall  have  hereafter  occasion  to  present  yon,  very  briefly 
and  conclusively,  a  condensed  recital ;  but  this  notion,  that  we 
here  claimed  any  right  to  rise  up  against  a  Government  that  was 
in  accordance  with  our  rights,  and  was  such  as  we  had  made  it, 
and  as  we  enjoyed  it,  equally  with  all  others  over  whom  it  was 
exercised — which  lies  at  the  bottom  of  the  revolt  in  this  coun 
try — had  not  the  least  place,  or  the  opportunity  of  a  place,  in 
our  relations  with  England.  We  expected  and  desired,  as  the 
correspondence  of  Washington  shows — as  some  of  the  observa 
tions  of  Hamilton,  I  think,  read  in  your  presence  by  the  learned 
counsel,  show — as  the  records  of  history  show — we  expected  to 
establish  security  for  ourselves  under  the  British  Crown,  and 
as  a  part  of  the  British  Empire,  and  to  maintain  the  right  of 
Englishmen,  to  wit,  the  right  of  legislation  and  taxation  where 
we  were  represented.  But  the  parent  Government,  against  the 
voice  and  counsels  of  such  statesmen  as  Burke,  and  the  warnings 
of  such  powerful  champions  of  liberty  as  Chatham,  undertook  to 
insist,  upon  the  extreme  logic  of  their  Constitution,  that  we 
were  British  subjects,  and  that  the  king  and  Parliament 
governed  all  British  subjects;  and  they  had  a  theory,  I  believe, 
that  we  were  represented  in  Parliament,  as  one  English  jurist 
put  it,  in  the  fact  that  all  the  grants  in  all  the  Colonies 
were,  under  the  force  of  English  law,  "  to  have  and  to  hold,  as 
the  Manor  of  East  Greenwich,"  and  that,  as  the  Manor  of 
East  Greenwich  was  represented  in  Parliament,  all  this  people 
were  represented.  But  this  did  not  suit  our  notions.  lhe 
lawyers  of  this  country,  the  Judges  of  this  country,  and  many 
of  the  lawyers  of  England,  as  mere  matter  of  strict  legal  right, 
held  that  the  American  view  of  the  Constitution  of  England, 
and  of  the  rights  of  Englishmen  who  enjoy  it,  was  the  true  one. 
But,  at  any  rate,  it  was  not  upon  an  irritation  about  public 


324  TRIAL  OF  THE  OFFICERS  AND  CREW 

sentiment ;  nor  was  it  upon  the  pressure  of  public  taxes ;  nor 
because  we  did  not  constitute  a  majority  of  Parliament ;  nor 
anything  of  that  kind;  but  it  was  on  clear  criteria  of  whether 
we  were  slaves,  as  Hamilton  presents  it,  or  part  of  the 
free  people  of  a  Government.  We,  therefore,  by  degrees,  and 
somewhat  unconscious,  perhaps,  of  our  own  enlightened  pro 
gress,  l?ut  ^  yet  wisely,  fortunately,  prosperously,  determined 
upon  our  independence,  as  the  necessary  means  of  securing 
those  rights  which  were  denied  to  us  under  the  Constitution  of 
our  country. 

Now,  there  was  not  the  least  pretence  of  the  right  of  a  peo 
ple  to  overthrow  a  Government  because  they  so  desire — which 
seems  to  be  the  proposition  here — because  they  think  they  do 
not  like  it — and  because  there  are  some  points  or  difficulties  in  its 
working  they  would  like  to  have  adjusted.  No ;  it  was  on  the 
mere  proposition  that  the  working  of  the  administration  in  En 
gland  was  converting  us  into  subjects,  not  of  the  Crown,  with 
the  rights  of  Englishmen,  but  subjects  of  the  despotic  power  of 
Parliament  and  the  king  of  England.  Now,  how  did  we  go 
to  work,  and  what  was  the  result  of  that  Revolution?  In  the 
first  place,  did  we  ever  become  thirteen  nations  ?  Was  Massa 
chusetts  a  nation  ?  Was  South  Carolina  a  nation  ?  Did  either 
of  them  ever  declare  its  independence,  or  ever  engage  in  a  war, 
by  itself  and  of  itself,  against  England,  to  accomplish  its  inde 
pendence?  No,  never;  the  first  and  preliminary  step  before 
independence  was  union.  The  circumstances  of  the  Colonies, 
we  may  well  believe,  made  it  absolutely  necesary  that  they 
should  settle  beforehand  the  question  of  whether  they  could 
combine  themselves  into  one  effectual,  national  force,  to  con 
tend  with  England,  before  they  undertook  to  fight  her.  It  was 
pretty  plain  that  Massachusetts  could  not  conquer  England,  or 
its  own  independence,  and  that  Virginia  could  not  do  so,  and 
that  the  New  England  States  alone  could  not  do  it,  and  that  the 
Southern  States  alone  could  not  do  it.  It  was  quite  plain  that 
New  York,  Pennsylvania  and  New  Jersey,  alone,  could  not  do 
it ;  and,  therefore,  in  the  very  womb,  as  it  were,  and  preceding 
our  birth  as  a  nation,  we  were  articulated  together  into  the 
frame  of  one  people,  one  community,  one  nationality.  Now, 
however  imperfectly,  and  however  clumsily,  and  however  un 
suitably  we  were  fir^t  connected,  and  however  necessary  and 
serious  the  changes  which  substituted  for  that  inchoate  shape  of 
nationality  the  complete,  firm,  noble  and  perfect  structure 
which  made  us  one  people  as  the  United  States  of  America, 
yet  you  will  find,  in  all  the  documents,  and  in  all  the  history, 
that  there  was  a  United  States  of  America,  in  some  form  rep 
resented,  before  there  was  anything  like  a  separation,  on  the 


OF   THE     SCHOONER  8AVANNA*H.  325 

part  of  any  of  the  Colonies,  from  the  parent  country,  except  in 
these  discontents,  and  these  efforts  at  an  assertion  of  our  liber 
ties,  which  had  a  local  origin. 

The  great  part  of  the  argument  of  my  learned  friend  rests 
upon  the  fact  that  these  States  were  nations,  each  one  of  them, 
once  upon  a  time;  and  that,  having  made  themselves  this  Gov 
ernment,  they  have  remained  nations,  in  it  and  under  it,  ever 
since,  subject  only  to  the  Confederate  authority,  in  the  terms 
of  a  certain  instrument  called  a  compact,  and  with  the  reserved 
right  of  nationality  ready,  at  all  times,  to  spring  forth  and  man 
ifest  itself  in  complete  separation  of  any  one  of  the  States  from, 
the  rest.  And  I  find,  strangely  enough,  in  the  argument  as 
well  of  the  promoters  of  these  political  movements  at  the  South 
as  in  the  voice  of  my  learned  friends  who  have  commented  on 
this  subject,  a  reference  to  the  early  diplomacy  of  the  United 
States,  as  indicative  of  the  fact  that  they  were  separate  and  in 
dependent  communities — regarded  as  such  by  the  contracting 
Powers  into  connection  with  whom  they  were  brought  by  their 
treaties  and  conventions,  and,  more  particularly,  in  the  de 
finitive  treaty  whereby  their  independence  was  recognized  by 
Great  Britain.  Now,  if  the  Court  please,  both  upon  the  point 
(if  it  can  be  called  a  point,  connected  with  your  judicial  inqui 
ry)  that  these  Colonies  were  formed  into  a  Union  before  they 
secured  their  national  independence,  and  that  there  was  no  mo 
ment  of  time  wherein  they  were  not  included,  either  as  united 
Colonies,  under  the  parental  protection  of  Great  Britain,  or  as 
united  in  a  struggling  Provisional  Government,  or  in  the  per 
fect  Government  of  me  Confederation,  and,  finally,  under  the 
present  Constitution — I  apprehend  there  can  be  no  doubt  that 
our  diplomacy,  commencing,  in  1778,  with  the  Treaty  of  Al 
liance  with  France,  contains  the  same  enumeration  of  States 
that  is  so  much  relied  upon  by  the  reasoners  for  independent 
nationality  on  the  part  of  all  the  States.  In  the  preamble  to 
that  Treaty,  found  at  page  6  of  the  8th  volume  of  the  Statutes 
at  Large,  the  language  was  :  "  The  Most  Christian  King  and  the 
United  States  of  North  America,  to  wit,  New  Hampshire,  &c., 
having  this  day  concluded,"  &c.  The  United  States  are  here 
treated  as  a  strictly  single  power,  with  whom  his  Most  Christian 
Majesty  comes  into  league ;  and  the  credentials  or  ratifications 
pursued  the  same  form.  The  Treaty  of  Commerce  with  the  same 
nation,  made  at  the  same  time,  follows  the  same  idea;  and  the 
Treaty  with  the  Netherlands,  made  in  1782,  contains  the  same 
enumeration  of  the  States,  and  speaks  of  each  of  the  contracting 
parties  as  being  "  countries."  The  Convention  with  the  Nether 
lands,  on  page  50  of  the  same  volume,  and  which  was  a  part 
of  the  same  diplomatic  arrangement,  and  made  at  the  same 
time,  speaks,  in  Article  1,  of  the  vessels  of  the  "  two  nations." 


326  TRIAL    OF   THE    OFFICERS   AND   CREW 

Now,  the  only  argument  of  my  learned  friends,  on  the  two 
treaties  with  Great  Britain,  of  November,  1782,  and  September, 
1783,  is,  that  they  are  an  agreement  between  England  and  the 
thirteen  nations ;  and  it  is  founded  upon  the  fact,  that  the  United 
States  of  America,  after  being  described  as  such,  are  enumerated 
under  a  "  viz."  as  being  so  many  provinces.  Now,  the  5th  and  6th 
articles  of  that  Convention  of  1782  with  the  Netherlands  speak  of 
"  the  vessels  of  war  and  privateers  of  one  and  of  the  other  of  the 
two  nations."  So  that,  pending  the  Revolution,  we  certainly, 
in  the  only  acts  of  nationality  that  were  possible  for  a  contend 
ing  power,  set  ourselves  forth  as  only  one  nation,  and  were  so 
recognized.  And  the  same  views  are  derivable  from  the  lan 
guage  of  the  Provisional  Treaty  with  Great  Britain  of  Novem 
ber,  1782,  and  of  the  Definitive  Treaty  of  Peace  with  Great 
Britain  of  September,  1783,  which  Treaties  are  to  be  found  at 
pages  54  and  80  of  the  same  8th  volume.  The  Preamble  to 
the  latter  Treaty  recites : 

"  It  having  pleased  the  Divine  Providence  to  dispose  the  hearts  of  the 
most  serene  and  most  potent  Prince  George  the  Third,  &c.,  and  of  the  United 
States  of  America  to  forget  all  past  misunderstandings  and  differences  that 
have  unhappily  interrupted  the  good  correspondence  and  friendship,  which 
they  mutually  wish  to  restore  ;  and  to  establish  such  a  beneficial  and  satis 
factory  intercourse  between  the  two  countries,  &c." 

And  then  comes  the  1st  article,  which  is  identical  in  lan 
guage  with  the  Treaty  with  the  Netherlands,  of  1782  : 

"  His  Britannic  Majesty  acknowledges  the  said  United  States,  viz.,  New 
Hampshire,  &c.,  to  be  ifree,  sovereign  and  independent  States." 

The  United  States  had  previously,  in  the  Treaty,  been  spo 
ken  of  as  one  country,  and  the  language  I  have  just  quoted  is 
only  a  statement  of  the  provinces  of  which  they  were  com 
posed  ;  for,  we  all  know,  as  matter  of  history,  that  there  were 
other  British  provinces  that  might  have  joined  in  this  Revolu 
tion,  and  might,  perhaps,  have  been  included  in  the  settlement 
of  peace ;  and  this  rendered  it  suitable  and  necessary  that  the 
provinces  whose  independence  was  acknowledged  should  be 
specifically  described.  But,  in  the  2d  article,  so  far  .from  the 
separateness  of  the  nationalities  with  which  the  convention  was 
made  being  at  all  recognized,  that  important  article,  which  is 
the  one  of  boundaries,  goes  onto  bound  the  entire  nation  as  one 
undivided  and  integral  territory,  without  the  least  attention  to 
the  divisions  between  them.  It  may  be  very  well  to  say  that  Eng 
land  was  only  concerned  to  have  one  continuous  boundary,  co 
terminous  to  her  own  possessions,  described,  and  that  that  was 
the  object  of  the  geographical  bounding  ;  but  the  entire  West 
ern,  Eastern,  and  Southern  boundaries  are  gone  through  as  those 


OF   THE   SCHOONER   SAVANNAH.  327 

ot  one  integral  nation.  The  3d  article  speaks,  again,  of  securing 
certain  rights  to  the  citizens  or  inhabitants  of  "  both  coun 
tries."  Now,  that  "  country  "  and  "  nation,"  in  the  language 
of  diplomacy,  are  descriptive,  not  of  territory,  in  either  case, 
but  of  the  nationality,  admits  of  no  discussion  ;  and  yet,  I  be 
lieve  that  the  most  substantial  of  all  the  citations  and  of  all 
the  propositions  from  the  documentary  evidence  of  the  Revolu 
tion,  which  seeks  to  make  out  the  fact  that  we  came  into  being 
as  thirteen  nations,  grows  out  of  this  British  Treaty,  which,  in 
its  preamble,  takes  notice  of  but  one  country,  called  the  United 
States  of  America,  and,  then,  in  recognition  of  the  United  States 
of  America,  names  the  States  under  a  "  viz." — they  being  in 
cluded  in  the  single  collective  nation  before  mentioned  as  the 
United  States. 

Now,  gentlemen,  after  the  Revolution  had  completed  our 
independence,  how  were  we  left  as  respects  our  rights,  our  in 
terests,  our  hopes,  and  our  prospects  on  this  very  subject  of 
nationality  ?  Why,  we  were  left  in  this  condition — that  we 
always  had  been  accustomed  to  a  parent  or  general  Govern 
ment,  and  to  a  local  subordinate  administration  of  our  domestic 
affairs  within  the  limits  of  our  particular  provinces.  Under  the 
good  fortune,  as  well  as  the  great  wisdom  which  saw  that  this 
arrangement — a  new  one — quite  a  new  one  in  the  affairs  of 
men — now  that  we  were  completely  independent,  and  capa 
ble  of  being  masters  of  our  whole  Government,  both  local 
and  general,  admitted  of  none  of  those  discontents  and  dangers 
which  belonged  to  our  being  subject  collectively  to  the 
dominion  of  a  remote  power  beyond  the  seas — under  the  good 
fortune  and  great  wisdom  of  that  opportunity,  we  undertook 
and  determined  to  establish,  and  had  already  established  pro 
visionally,  a  complete  Government,  which  we  supposed  would 
answer  the  purpose  of  having  a  general  representation  and 
protection  of  ourselves  toward  the  world  at  large,  and  yet 
would  limit  the  local  power  and  authority,  consistently  with 
good  and  free  Government,  as  respected  populations  homeo- 
geneous,  and  acquainted  with  each  other,  and  with  their  own 
wants  and  the  methods  of  supplying  them. 

The  Articles  of  Confederation,  framed  during  the  Revolu 
tion,  ratified  at  different  times  during  its  progress,  and  at  its 
close,  was  a  Government  under  which  we  subsisted — for  how 
long  ?  Until  1787 — but  four  years  from  the  time  that  we  had 
an  independent  nationality — we  were  satisfied  with  the  im 
perfect  Union  that  our  provisional  Government  had  originated, 
and  that  we  had  shaped  into  somewhat  more  consistency  under 
the  Articles  of  Confederation.  Why  did  we  not  stay  under 
that?  We  were  a  feeble  community.  We  had  but  little  popu 
lation,  but  little  wealth.  We  had  but  few  of  the  occasions  of 


328  TRIAL    OF  THE   OFFICERS   AND   CREW 

discontent  that  belong  to  great,  and  wealthy,  and  populous 
States.  But  the  fault,  the  difficulty,  was,  that  there  were,  in 
that  Confederation,  too  many  features  which  our  learned  friends, 
their  clients  here,  and  theoretical  teachers  of  theirs  elsewhere, 
contend,  make  the  distinctive  character  of  the  American  Consti 
tution,  as  finally  developed  and  established.  The  difficulty  was 
that,  although  we  were  apparently  and  intentionally  a  nation,  as 
respected  the  rest  of  the  world,  and  for  all  the  purposes  of  com 
mon  interest  and  common  protection  and  common  development, 
yet  this  element  of  separate  independency,  and  these  views 
that  the  Government  thus  framed  operated,  not  as  a  Govern 
ment  over  individuals,  but  as  a  Government  over  local  com 
munities  in  an  organized  form,  made  its  working  imperfect, 
impossible,  and  the  necessary  occasion  of  dissension,  and  weak 
ness,  and  hostility,  and  left  it  without  the  least  power,  except 
by  continued  force  and  war,  to  maintain  nationality. 

Now,  it  was  not  because  we  were  sovereigns,  all  of  us, 
because  we  had  departed  from  sovereignty.  There  was  not 
the  least  right  in  any  State  to  send  an  ambassador,  or  make  a 
treaty,  or  have  anything  signed ;  but  the  vice  was,  that  the 
General  Government  had  no  power  or  authority,  directly,  on  the 
citizens  of  the  States,  but  had  to  send  its  mandates  for  contribu 
tions  to  the  common  treasury,  and  its  requirements  for  quotas 
for  the  common  army  and  the  common  navy,  directly  to  the 
States.  Now,  I  tarry  no  longer  on  this  than  to  say,  that  the 
brief  experience  of  four  years  showed  that  it  was  an  impossible 
proposition  for  a  Government,  that  there  should  be  in  it  even 
these  imperfect,  clipped  and  crippled  independencies,  that 
were  made  out  of  the  original  provinces  and  called  States.  In 
1787,  the  great  Convention  had  its  origin,  and  in  1789  the 
adoption  of  the  Constitution  made  something  that  was  sup 
posed  to  be,  and  entitled  to  be,  and  our  citizens  required  to  be, 
as  completely  different,  on  this  question  of  double  sovereignty, 
and  divided  allegiance,  and  equal  right  of  the  nation  to  re 
quire  and  of  a  State  to  refuse,  as  was  possible.  If,  indeed, 
instead  of  the  Confederation  having  changed  itself  from  an 
imperfect  connection  of  States  limited  and  reduced  in  sover 
eignty,  into  a  Government  where  the  nation  is  the  coequal  and 
co  ordinate  power  (as  our  friends  express  it)  of  every  State  in 
it,  why  surely  our  brief  experience  of  weakness  and  disorder, 
and  of  contempt,  such  as  was  visited  upon  us  by  the  various 
nations  with  whom  we  had  made  treaties,  that  we  could  not 
fulfil  them,  found,  in  the  practical  wisdom  of  the  intelligent 
American  people,  but  a  very  imperfect  and  unsatisfactory  solu 
tion,  if  the  theories  of  the  learned  counsel  are  correct,  that 
these  United  States  are,  on  the  one  part,  a  power,  and  on  the 
other  part,  thirty-four  different  powers,  all  sovereign,  and  the 


OF  THE   SCHOONER   SAVANNAH.  329 

two  having  complete  rights  of  sovereignty,  and  dividing  the 
allegiance  of  our  citizens  in  every  part  of  our  territory. 

Now,  the  language  of  the  Constitution  is  familiar  to  all  of 
you.  That  it  embodies  the  principle  of  a  General  Government 
acting  upon  all  the  States,  and  upon  you,  and  upon  me,  and 
upon  every  one  in  the  United  States  ;  that  it  has  its  own  estab 
lished  Courts — its  own  mandate  by  which  jurors  are  brought 
together — its  own  laws  upon  all  the  subjects  that  are  attributed 
to  its  authority ;  that  there  is  an  establishment  known  as  the 
Supreme  Court,  which,  with  the  appropriate  inferior  establish 
ments,  controls  and  finally  disposes  of  every  question  of  law, 
and  right,  and  political  power,  and  political  duty ;  and  that 
this  adjusted  system  of  one  nation  with  distributed  local  power, 
is,  in  its  working,  adequate  to  all  the  varied  occasions  which 
human  life  developes — we  all  know.  We  have  lived  under  it, 
we  have  prospered  under  it,  we  have  been  made  a  great  nation, 
an  united  people,  free,  happy,  and  powerful. 

Now,  gentlemen,  it  is  said — and  several  points  in  our  history 
have  been  appealed  to,  as  well  as  the  disturbances  that  have 
torn  our  country  for  the  last  year — that  this  complete  and  inde 
pendent  sovereignty  of  the  States  has  been  recognized.  Now, 
there  have  been  several  occasions  on  which  this  subject  has 
come  up.  The  first  was  under  the  administration  of  the  first 
successor  of  General  Washington — John  Adams, — when  the 
famous  Virginia  and  Kentucky  resolutions  had  their  origin. 
About  these  one  of  my  learned  friends  gave  you  a  very  exten 
sive  discussion,  and  another  frankly  admitted  that  he  could  not 
understand  the  doctrine  of  the  co-ordinate,  equal  sovereignty 
of  two  powers  within  the  same  State.  On  the  subject  of  these 
Virginia  resolutions,  and  on  the  question  of  whether  they  were 
the  recognized  doctrines  of  this  Government,  I  ask  your  atten 
tion  to  but  one  consideration  of  the  most  conclusive  character, 
and  to  be  disposed  of  in  the  briefest  possible  space.  The  pro 
position  of  the  Virginia  resolutions  was,  that  the  States  who 
are  parties  to  the  compact  have  the  right  and  are  in  duty  bound 
to  interpose  to  arrest  the  progress  of  the  evil  (that  is,  when 
unconstitutional  laws  are  passed),  and  to  maintain,  within 
their  respective  limits,  the  authority,  rights,  and  liberties  per 
taining  to  them.  That  is  to  say,  that  where  any  law  is  passed 
by  the  Congress  of  the  United  States,  which  the  State  of  Vir 
ginia,  in  its  wise  and  independent  judgment,  pronounces  to  be 
in  excess  of  the  constitutional  power,  it  is  its  right  and  duty  to 
interpose.  How  ?  By  secession  ?  No.  By  rebellion  ?  No. 
But  by  protecting  and  maintaining,  within  its  territory,  the 
authority,  rights,  and  liberties  pertaining  to  it.  Now,  these 
resolutions  grew  out  of  what?  Certain  laws,  one  called  the 


330  TRIAL   OF   THE   OFFICERS    AND   CREW 

"  Alien  "  and  the  other  the  "  Sedition  "  law,  rendered  necessary 
by  the  disturbances  communicated  by  the  French  revolution  to 
this  country,  and  which  necessarily  came  within  the  doctrine 
of  my  friend,  Mr.  Larocgue,  that  there  is  not  the  least  right  of 
secession  when  the  laws  are  capable  of  being  the  subject  of 
judicial  investigation.  Well,  those  laws  were  capable  of  being 
the  subject  of  judicial  investigation,  and  the  resolutions  did 
not  claim  the  right  of  secession,  but  of  nullification.  My 
learned  friend  says  that  the  doctrine  of  u  secession  "  has  no 
ground. 

But  wtat  was  the  fate  of  the  "  Virginia  resolutions  "  ?  For 
Virginia  did  not  pretend  that  she  had  all  the  wisdom,  and 
virtue,  and  patriotism  of  the  country  within  her  borders.  She 
sent  these  resolutions  to  every  State  in  the  Union,  and  desired 
the  opinion  of  their  legislatures  and  their  governors  on  the  sub 
ject.  Kentucky  passed  similar  resolutions ;  and  Kentucky,  you 
will  notice,  had  just  been  made  a  State,  in  1793 — an  off-shoot 
from  Virginia,;  and,  as  the  gentleman  has  told  you,  Mr.  Madi 
son  wrote  the  resolutions  of  Virginia,  and  Mr.  Jefferson  those  of 
Kentucky.  So  that  there  was  not  any  great  independent  sup 
port,  in  either  State,  for  the  views,  thus  identical,  and  thus 
promulgated  by  these  two  Virginians.  Their  great  patriot 
ism,  and  wisdom,  and  intelligence,  are  a  part  of  the  inherit 
ance  we  are  all  proud  of.  But,  when  the  appeal  was  sent 
for  concurrence  to  New  York,  South  Carolina,  Georgia,  Massa 
chusetts,  and  the  ISTew  England  States,  what  was  the  result? 
"Why,  Kentucky,  in  1799,  regrets  that,  of  all  the  States,  none, 
except  Virginia,  acquiesced  in  the  doctrines  ;  and  the  answers 
of  every  one  of  the  States  that  made  response  are  contained 
in  the  record  which  also  contains  the  Virginia  and  Kentucky 
resolutions.  And  that  doctrine  there  exploded,  and  exploded 
forever,  until  its  recurrence  in  the  shape  of  nullification,  in 
South  Carolina,  as  part  of  the  doctrines  of  this  Constitution. 

We  had  another  pressure  on  the  subject  of  local  dissatisfac 
tion,  in  1812 ;  and  then  the  seat  of  discontent  and  heresy  was  New 
England.  I  do  not  contend,  and  never  did  contend,  in  any 
views  I  have  taken  of  the  history  of  affairs  in  this  country,  that 
the  people  of  any  portion  of  it  have  a  right  to  set  themselves 
in  judgment  as  superiors  over  the  people  of  any  other  portion.  I 
never  have  had  any  doubt  that,  just  as  circumstances  press  on 
the  interests  of  one  community  or  another,  just  so  are  they  likely 
to  carry  their  theoretical  opinions  on  the  questions  of  the  power 
of  their  Government  and  of  their  own  rights,  and  just  so  to  ex 
press  themselves.  So  long  as  they  confine  themselves  to  resolu 
tions  and  politics,  to  the  hustings  and  to  the  elections,  nobody 
cares  very  much  what  their  political  theories  are.  But  my  learn 
ed  friend  Mr.  Brady  has  taken  the  greatest  satisfaction  in  show- 


OF   THE    SCHOONER   SAVANNAH.  331 

ing,  that  this  notion  of  the  co-ordinate  authority  of  the  Spates 
with  the  nation,  found  its  expression  and  adoption,  during  the 
war  of  1812,  in  some  of  the  States  of  New  England.  Well, 
gentlemen,  I  believe  that  all  sober  and  sensible  people  a^ree 
that,  whether  or  not  the  New  England  States  carried  their  her 
esies  to  the  extent  of  justifying  the  nullification  of  a  law,  or  the 
revocation  of  their  assent  to  the  Confederacy,  and  their  with 
drawal  from  the  common  Government,  the  doctrines  there 
maintained  were  not  suitable  for  the  strength  and  the  harmony, 
for  the  unity  and  the  permanency,  of  the  American  Govern 
ment.  1  believe  that  the  condemnation  of  those  principles 
that  followed,  from  South  Carolina,  from  Virginia,  from  New 
York,  and  from  other  parts  of  the  country,  and  the  resistance 
which  a  large,  and  important,  and  intelligent,  and  influential 
portion  of  their  own  local  community  manifested,  exterminated 
those  heresies  forever  from  the  New  England  mind. 

Next,  we  come  to  1832,  and  then,  under  the  special  instruc 
tion  and  authority  of  a  great  Southern  statesman,  (Mr.  Cal- 
houn,)  whose  acuteness  and  power  of  reasoning  have  certainly 
been  scarcely,  if  at  all,  surpassed  by  any  of  our  great  men,  the 
State  of  South  Carolina  undertook,  not  to  secede,  but  to  nullify; 
and  yet  Mr.  Larocque  says,  that  this  pet  doctrine  of  Mr.  Cal- 
houn, — nullification,  and  nothing  else, — is  the  ab-urdest  thing 
ever  presented  in  this  country  ;  and  we  are  fortunate,  I  suppose, 
in  not  having  wrecked  our  Union  upon  that  doctrine. 

Now  we  come,  next,  to  the  doctrine  of  secession.  Nulli 
fication,  rejected  in  1798  by  all  the  States,  except  Virginia  and 
Kentucky,  and  never  revived  by  them, — nullification,  rejected 
by  the  sober  sense  of  the  American  People, — nullification  was 
put  down  by  the  strong  will  of  Jackson,  in  1832, — having  no 
place  to  disturb  the  strength  and  hopes  and  future  of  this  coun 
try.  And  what  do  we  Snd  is  the  proposition  now  put  for 
ward,  as  matter  of  law,  to  your  Honors,  to  relieve  armed  and 
open  war  from  the  penalties  of  treason,  and  from  the  con 
demnation  of  a  lesser  crime  ?  What  is  it,  as  unfolded  here 
by  the  learned  advocate  (Mr.  Larocque),  with  all  his  acute- 
ness,  but  so  manifest  an  absurdity  that  its  recognition  by  a 
lawyer,  or  an  intelligent  Jury,  seems  almost  impossible  ?  It 
is  this :  This  Union  has  its  power,  its  authority,  its  laws. 
It  acts  directly  upon  all  the  individuals  inside  of  every 
State,  and  they  owe  it  allegiance  as  their  Government.  It  is 
a  Government  which  is  limited,  in  the  exercise  of  its  power,  to 
certain  general  and  common  objects,  not  interfering  with  the 
domestic  affairs  of  any  community.  "Within  that  same  State 
there  is  a  State  government,  framed  into  this  General  Govern 
ment,  to  be  certainly  a  part  of  it  in  its  territories,  a  part  of  it 
in  its  population,  a  part  of  it  in  every  organization,  and  every 


332  TRIAL  OF  THE   OFFICERS   AND   CREW 

department  of  its  Government.  The  whole  body  of  its  admin 
istration  of  law,  the  Legislature  and  the  Executive,  are  bound, 
by  a  particular  oath,  to  sustain  the  Constitution  of  the  United 
States.  But,  although  it  is  true  that  the  State  Government 
has  authority  only  where  the  United  States  Government  has 
not,  and  that  the  United  States  have  authority  only  where  the 
State  has  not ;  and  although  there  is  a  written  Constitution, 
which  says  what  the  line  of  separation  is;  and  although  there 
is  a  Supreme  Court,  which,  when  they  come  into  collision,  has 
authority  to  determine  between  them,  and  no  case  whatever, 
affecting  the  right  or  the  conduct  of  any  individual  man,  can 
be  subtracted  from  its  decision ;  yet,  when  there  comes  a 
difference  between  the  State  and  the  General  Government,  the 
State  has  the  moral  right,  and  political  right,  to  insist  upon 
its  view,  and  to  maintain  it  by  force  of  arms,  and  the  General 
Government  has  the  right  to  insist  upon  its  view,  and  to 
maintain  it  by  force  of  arms.  And  then  we  have  this  poor  pre 
dicament  for  every  citizen  of  that  unlucky  State, — that  he  is 
bound  by  allegiance,  and  under  the  penalty  of  treason,  to 
follow  each  and  both  of  these  powers'.  And  as,  should  he 
follow  the  State,  the  United  States,  if  it  be  treason,  would  hang 
him,  and,  if  he  should  follow  the  United  States,  the  State,  if  it 
be  treason,  would  hang  him,  this  peculiar  and  whimsical  result 
is  produced, — that  when  the  United  States  undertake  to  hang 
him  for  treason  his  answer  is — "  Why,  if  I  had  not  done  as  I 
did,  the  State  would  have  hanged  me  for  treason,  and,  surely,  I 
cannot  be  compelled  to  be  hanged  one  way  or  the  other — so,  I 
must  be  protected  from  hanging,  as  to  both  !  "  Well,  that,  I 
admit,  is  a  sensible  way  to  get  out  of  the  difficulty,  for  the  man 
and  for  the  argument,  if  you  can  do  it.  But,  it  is  a  peculiar 
result,  to  start  with  two  sovereigns,  each  of  which  has  a  right 
over  the  citizen,  and  to  end  with  the  citizen's  right  to  choose 
which  he  shall  serve,  and  to  throw  it  in  the  face  of  offended 
majesty  and  justice — "  Why,  your  statute  of  treason  is  repealed 
as  against  me,  because  the  State,  of  which  I  am  a  subject,  has 
counseled  a  particular  course  of  conduct !  " 

Now,  gentlemen,  my  learned  friend  qualifies  even  this 
theory — which  probably  must  fall  within  the  condemnation  of 
the  perhaps  somewhat  harsh  and  rough  suggestion  of  Mr. 
Justice  Grier,  of  a  "  political  platitude" — by  the  suggestion 
that  it  only  applies  to  questions  where  the  United  States  can 
not  settle  the  controversy.  And  when  my  learned  friend  is 
looking  around  for  an  instance  or  an  occasion  that  is  likely  to 
arise  in  human  affairs,  and  in  this  nation,  and  in  this  time  of 
ours,  he  is  obliged  to  resort  to  the  most  extraordinary  and  ex 
travagant  proposition  by  way  of  illustration,  and  one  that  has,  in 
itselt,  so  many  of  the  ingredients  of  remoteness  and  impossibili- 


OF  THE   SCHOONER   SAVANNAH.  333 

ty,  that  you  can  hardly  think  a  Government  deficient  in  not  hav 
ing  provided  for  it.  He  says,  first — suppose  we  have  a  Presi 
dent,  who  is  a  Massachusetts  man.  Well,  that  is  not  very 
likely  in  the  course  of  politics  at  present.  And  then,  suppose 
that  he  is  a  bad  man, — which,  probably,  my  learned  friends 
would  think  not  as  unlikely  as  I  should  wish  it  to  be.  And, 
then,  suppose  he  should  undertake  to  build  up  Boston,  in  its 
commerce,  at  the  expense  of  New  York ;  and  should  put  a 
blockading  squadron  outside  New  York,  by  mere  force  of 
caprice  and  tyranny,  without  any  law,  and  without  any  provision 
for  the  payment  of  the  men  of  the  Navy,  or  any  commission  or 
authority  to  any  of  them  under  which  they  could  find  they  were 
protected  for  what  they  should  do,  in  actually  and  effectually 
blockading  our  port.  My  learned  friend  acknowledges  that 
this  is  a  pretty  violent  sort  of  suggestion,  and  that  no  man  in 
his  senses  would  pretend  to  do  such  a  thing,  however  bad  he 
was,  unless  he  could  find  a  reasonable  sort  of  pretext  for  it. 
Therefore  he  would,  wisely  and  craftily,  pretend  that  he  had 
private  advices  that  England  was  going  to  bombard  New 
York.  Now  that  is  the  practical  case  created  by  my  learned 
friend's  ingenuity  and  reflection,  as  a  contingency  in  which 
this  contest  by  war  between  New  York  and  the  United 
States  of  America  would  be  the  only  practical  and  sensible 
mode  of  protecting  our  commerce,  and  keeping  you  and  me 
in  the  enjoyment  of  our  rights  as  citizens  of  the  State  of 
New  York.  "Well,  to  begin  with,  if  we  had  a  fleet  off  New 
York  harbor,  what  is  there  that  would  require  vessels  to 
go  to  Boston  instead  of  to  Philadelphia,  Baltimore,  and  other 
places  that  are  open?  In  the  second  place,  how  long  could 
we  be  at  war,  and  how  great  an  army  could  we  raise 
in  New  York,  to  put  in  the  field  against  the  Federal  Gov 
ernment,  before  this  pretence  of  private  advices  that  Eng 
land  was  going  to  bombard  New  York,  would  pass  away,  and 
the  naked  deformity  of  this  bad  Massachusetts  President  be 
exposed  ?  Why,  gentlemen,  it  is  too  true  to  need  suggestion, 
that  the  wisdom  which  made  this  a  Government  over  all  indi 
vidual  citizens,  and  made  every  case  of  right  and  interest 
that  touches  the  pocket  and  person  of  any  man  in  it  a  question 
of  judicial  settlement,  made  it  a  Government  which  requires 
for  the  solution  of  none  of  the  controversies  within  it,  a  resort 
to  the  last  appeal — to  battle,  and  the  right  of  kings. 

(Adjourned  to  11  o'clock  to-morrow.) 


334:  TRIAL    OF   THE   OFFICERS   AND    CREW 


SEVENTH    DAY. 

Wednesday,  October  30, 1861. 

The  Court  met  at  11  o'clock  A.  M.,  when  Mr.  Evarts  re 
sumed  his  argument. 

Gentlemen  of  the  Jury  :  In  resuming  the  course  of  my  re 
marks,   already  necessarily   drawn    to    a    very   considerable 
length,  I  must  recall  to  your  attention  the  point  that  I  had 
reached  when  the  Court  adjourned.   I  was  speaking  of  this  right 
of  secession,  as  inconsistent  with  the  frame,  the  purpose,  and 
the  occasion  upon  which  the  General  Government  was  formed ; 
and  of  the  illustration  invented  by  my  learned  friend,  and  so 
improbable  in  its  circumstances,  of  the  position  of  the  United 
States  and  one  of  the  States  of  the  Union,  that  could  bring  into 
play  and  justify  this  resort  to  armed  opposition.     I  had  said 
what  I  had  to  say,  for  the  most  part,  as  to  the  absurdity  and 
improbability  of  the  case  supposed,  and  the  inadequacy,  the 
worthlessness,  the  chimerical  nature  of  the  remedy  proposed. 
Now,  you'will  observe  that,  in  the  case  supposed,  the  blockade  of 
New  York  was  to  be  without  law,  without  authority,  upon  the 
mere  capricious  pretence  of  the  President — :a  pretence  so  absurd 
that  it  could  not  stand  the  inspection  of  the  people  for  a  moment. 
What  is  the  use  of  a  pretence  unless  it  is  a  cover  for  the  act 
which  it  is  intended  to  cloak?     In  such  a  case,  the  only  proper, 
peaceful  course  would  be  to  raise  the  question,  which  might  be 
raised  judicially,  by  attempting,  in  a  peaceful  manner,  to  pass 
the  blockade,  and  throw  the  consequences  upon  the  subordinate 
officers  who  attempted  to  execute  the  mere  usurpation  of  the 
President,  and,  following  the  declaration  of  the  Divine  writings, 
that  "  wisdom  is  better  than  weapons  of  war,"  wait  until  the 
question  could  be  disposed  of  under  the  Constitution  of  the  Uni 
ted  States.   For  you  will  observe  that,  in  the  case  supposed,  there 
is  no  threat  to  the  integrity,  no  threat  to  the  authority,  no  threat 
to  the  existence  of  the  State  Government,  or  its  Constitution; 
but  an  impeding  of  the  trade  or  interests  of  the  people  of  this 
city,  and  of  the  residents  of  all  parts  of  the  country  interested 
in  the  commerce  of  New  York.     That  port  is  not  the  port  of 
New  York  alone.     It  is  the  port  of  the  United  States  of  Amer 
ica,  and  all  the  communities  in  the  Western  country,  who  derive 
their  supplies  of  foreign  commodities  through  our  internal  nav 
igation,  when  commerce  has  introduced  them,  into  this  port,  are 
just  as  much  aifected — just  as  much  injured  and  oppressed — by 
this  blockade  of  our  great  port  and  emporium,  as  are  the  people 


OF  THE    SCHOONER    SAVANNAH.  335 

of  the  State  of  New  York.  So  that,  so  far  from  its  being  a  col 
lision  between  the  Government  of  the  State  of  New  York  and 
the  Government  of  the  United  States,  it  is  a  violent  oppression, 
by  usurpation — exposing  to  the  highest  penalties  of  the  law  the 
magistrate  who  has  attempted  it — exercised  upon  the  people  of 
the  United  States  wherever  residing,  in  the  far  West,  in  the  sur 
rounding  States,  in  the  whole  country,  who  are  interested  in  the 
maintenance  of  the  commerce  of  this  port.  I  need  not  say  that 
the  action  of  our  institutions  provides  a  ready  solution  for  this 
difficulty.  Two  or  three  weeks  must  bring  to  the  notice  of 
every  one  the  frivolity  of  the  pretence  of  the  Executive,  that 
there  was  a  threat  of  armed  attack  by  a  foreign  nation.  But  if 
two  or  three  weeks  should  bring  the  evidence  that  this  was  not  an 
idle  fear,  and  that,  by  information  conveyed  to  the  Government, 
this  threat  was  substantial,  and  was  followed  by  its  attempted 
execution, — why,  then,  how  absurd  the  proposition  that,  under 
the  opinion  of  the  State  of  New  York,  that  this  was  but  an  idle 
pretext,  for  purposes  of  oppression,  the  State  should  fly  into  arms 
against  the  power  exercised  to  protect  the  city  from  foreign  at 
tack  !  The  working  of  our  affairs,  which  brings  around  the  ses 
sion  of  Congress  at  a  time  fixed  by  law — not  at  all  determinable 
by  the  will  of  the  President — exposes  him  to  the  grand  inquest  of 
the  people,  which  sits  upon  his  crime,  and,  by  his  presentation  and 
trial  before  the  great  Court  of  Impeachment,  in  the  course  of  one 
week — nay,  in  scarcely  more  than  one  day  after  its  coming  into 
session — both  stamps  this  act  as  an  usurpation,  and  dispossesses 
the  magistrate  who  has  violated  the  Constitution.  And  yet,  rath 
er  than  wait  for  this  assertion  of  the  power  of  the  Constitution 
peacefully  to  depose  the  usurping  magistrate,  my  friend  must 
resort  to  this  violent  intervention  of  armed  collision,  that  would 
keep  us — in  theory,  at  least — constantly  maintaining  our  rights 
by  the  mere  method  of  force,  and  would  make  of  this  Govern 
ment — at  the  same  time  that  they  eulogize  the  founders  of  it,  as 
the  best  and  wisest  of  men — but  an  organization  of  armed  hostili 
ties,  and  its  framers  only  the  architects  of  an  ever-impending 
ruin ! 

•  My  learned  friend,  Mr.  Brady,  has  asked  my  attention  to 
the  solution  of  a  case  wherein  he  thinks  the  State  Govern 
ment  might  be  called  upon  to  protect  the  rights  of  its  citizens 
against  the  operation  of  an  Act  of  Congress,  by  proposing 
this  question :  Suppose  Congress  should  require  that  all  the 
expenses  of  this  great  war,  as  we  call  it,  should  be  paid  by 
the  State  of  New  York, — what  should  we  do  in  that  case  ? 
Nothing  but  hostilities  are  a  solution  for  that  case,  it  is  sug 
gested.  Now,  I  would  freely  say  to  my  learned  friend,  Mr. 
Brady,  that  if  the  General  Government,  by  its  law,  should  im 
pose  the  whole  taxation  of  the  war  upon  the  State  of  New 


336  TRIAL   OF   THE    OFFICERS    AND    CREW 

York,  I  should  advise  the  State  of  New  York,  or  any  citizen  in 
it,  not  to  pay  the  taxes.  That  is  the  end  of  the  matter.  And  I 
would  like  to  know  if  there  is  any  warlike  process  by  which 
the  General  Government  of  the  United  States  exacts  its  tribute 
of  taxation,  that  could  impose  the  whole  amount  on  New  York? 
As  the  process  of  taxation  goes  on,  it  is  distributed  through 
different  channels,  and  presents  itself  as  an  actual  and  effective 
process,  from  the  tax-gatherer  to  the  tax-payer :  "  Give  me  so 
many  dollars."  And  the  tax-payer  says :  "There  is  no  law  for 
it,  and  I  will  not  do  it."  Then  the  process  of  collection  raises 
for  consideration  this  inquiry — whether  the  tax  is  according  to 
law,  and  according  to  the  constitutional  law  of  the  United  States 
of  America.  And  this  tribunal,  formed  to  decide  such  ques 
tions — formed  to  settle  principles  in  single  cases,  that  shall  pro 
tect  against  hostilities  these  great  communities — disposes  of  the 
question.  If  the  law  is  constitutional,  then  the  tax  is  to  be  paid — 
if  unconstitutional,  then  the  tax  is  not  collectable  ;  and  the  ques 
tion  is  settled.  But  my  learned  friends,  in  their  suggestions  of 
what  is  a  possible  state  of  law  that  may  arise  in  this  country, 
forget  the  great  distinction  between  our  situation  under  the 
Federal  Government  and  our  situation  as  Colonies  under  the 
authority  of  the  King  and  Parliament  of  England.  It  is  the 
distinction  between  not  being  represented  and  being  repre 
sented. 

Why,  my  learned  friends,  in  order  to  get  the  basis  of  a  pos 
sible  suggestion  of  contrariety  of  duty  and  of  interest  between 
the  Government  of  the  United  States  and  the  people  in  these 
States,  must  overlook,  and  do  overlook  the  fact  that  there  is 
not  a  functionary  in  the  Federal  Government,  from  the  Presi 
dent  down  to  the  Houses  of  Congress,  that  does  not  derive  his 
authority  from  the  people,  not  of  one  State,  not  of  any  number 
of  States,  but  of  all  the  States.  And  thus  standing,  they  are 
guardians  and  custodians,  in  their  own  interests  —  in  their 
own  knowledge  of  the  interests  of  their  own  people — in  their 
own  knowledge  that  their  place  in  the  protection,  power,  and 
authority  of  the  Government  of  the  United  States,  proceeds  by 
the  favor  and  the  approval  of  the  local  community  in  which 
they  reside.  So  far,  therefore,  from  anything  in  the  arrange 
ment  or  the  working  of  these  political  systems  being  such  as  to 
make  the  Representatives  or  Senators  that  compose  Congress 
the  masters  or  the  enemies  of  the  local  population  of  the  States 
from  which  they  respectively  come,  they  come  there  under  the 
authority  of  the  local  population  which  they  represent,  depend 
ent  upon  it  for  their  place  and  continuance,  and  not  on  the 
Federal  Government. 

Away,  then,  with  the  notion,  so  foreign  to  our  actual,  con 
stituted  Government,  that  this  Government  of  the  United  States 


OF   THE    SCHOONER    SAVANNAH.  337 

of  America  is  a  Government  that  is  extended  over  these  States, 
with  an  origin,  a  power,  a  support  independent  of  them,  and  that 
it  contains  in  itself  an  arrangement,  a  principle,  a  composition 
that  can  by  possibility  excite  or  sustain  these  hostilities  !  Why, 
every  act  of  Congress  must  govern  the  whole  Union.  Every 
tax  must,  to  be  constitutional,  be  extended  over  the  whole 
Union,  and  according  to  a  fixed  ratio  of  distribution  between 
the  States,  established  by  the  Constitution  itself.  Now,  there 
fore,  when  any  particular  interest,  any  particular  occasion,  any 
supposed  necessity,  any  political  motive,  suggests  a  departure, 
on  the  part  of  the  General  Government,  from  a  necessary  ad 
herence  to  this  principle  of  the  Constitution,  you  will  perceive 
that  not  only  are  the  Representatives  and  Senators  who  come 
from  the  State  against  which  this  exercise  of  power  is  at 
tempted,  interested  to  oppose,  in  their  places  in  Congress,  the 
violation  of  the  Constitution,  but  the  Representatives  and  the 
Senators  from  every  other  State,  in  support  of  the  rights  of 
the  local  communities  in  which  they  reside,  have  the  same  in 
terest  and  the  same  duty,  and  may  be  practically  relied  upon 
to  exercise  the  same  right,  and  authority,  and  opposition,  in 
protection  of  their  communities,  against  an  application  of  the 
same  principle,  or  an  obedience  to  the  same  usurpation,  on 
subsequent  occasions,  in  reference  to  other  questions  that  may 
arise.  Therefore,  my  learned  friends,  when  they  are  talking  to 
you,  theoretically  or  practically,  about  the  opposition  that  may 
arise  between  co-ordinate  and  independent  sovereignties,  and 
would  make  the  glorious  Constitution  of  this  Federal  Govern 
ment  an  instance  of  misshapen,  and  disjointed,  and  impractical 
inconsistencies,  forget  that  the  great  basis  of  both  of  them  rests 
in  the  people,  and  in  the  same  people — equally  interested, 
equally  powerful,  to  restrain  and  to  continue  the  movements  of 
each,  within  the  separate,  constitutional  rights  of  each.  Now, 
unquestionably,  in  vast  communities,  with  great  interests,  di 
verse  and  various,  opinions  may  vary,  and  honest  sentiments 
may  produce  the  enactment  of  laws  of  Congress,  which  equally 
honest  sentiments,  on  the  part  of  local  communities,  expressed 
through  the  action  of  State  legislation,  may  regard  as  incon 
sistent  with  the  Government  and  the  Constitution  of  the  United 
States,  and  with  the  rights  of  the  States.  But,  for  these  pur 
poses,  for  these  occasions,  an  ample  and  complete  theoretical 
and  practical  protection  of  the  rights  of  all  is  found,  in  this  abso 
lute  identity  of  the  interests  of  the  people  and  of  their  authority 
in  both  the  form  and  the  structure  of  their  complex  Govern 
ment,  and  in  the  means  provided  by  the  Constitution  itself  for 
testing  every  question  that  touches  the  right,  the  interest,  the 
liberty,  the  property,  the  freedom  of  any  citizen,  in  all  and  any 
of  these  communities,  before  the  Supreme  Court  of  the  United 
22 


338  TRIAL   OF   THE   OFFICERS    AND   CRliW 

States.  Let  us  not  be  drawn  into  any  of  these  shadowy  propo 
sition?,  that  the  whole  people  may  be  oppressed,  and  not  a  sin 
gle  individual  in  it  be  deprived  of  any  personal  right.  When 
ever  the  liberty  of  the  citizen  is  abridged  in  respect  to  any 
personal  right,  the  counsel  concede  that  the  Courts  are  open  to 
him;  and  that  is  the  theory,  the  wisdom,  and  the  practical 
success  of  the  American  Constitution. 

Now,  gentlemen  of  the  Jury,  but  one  word  more  on  this 
speculative  right  of  secession.  It  is  founded,  if  at  all,  upon 
the  theory,  that  the  States,  having  been,  anterior  to  the  forma 
tion  of  the  Constitution,  independent  sovereignties,  are,  them 
selves,  the  creators,  and  that  the  Constitution  is  the  creature 
proceeding  fr<>m  their  power.  I  have  said  all  I  have  to  say 
about  either  the  fact,  or  the  result  of  the  fact,  it'  it  be  one,  of 
the  existence  of  these  antecedent,  complete  national  sovereign 
ties  on  the  part  of  any  of  the  original  States.  But,  will  my 
learned  friends  tell  me  how  this  theory  of  theirs,  in  respect  to 
the  original  thirteen  States,  has  any  application  to  the  States, 
now  quite  outnumbering  the  original  thirteen,  which  have, 
since  the  Constitution  was  formed,  entered  into  the  Government 
of  this  our  territory,  this  our  people?  Out  of  thirty-four 
States,  eleven  have  derived  their  existence,  their  permission  to 
exist,  their  territory,  their  power  to  make  a  Constitution,  from 
the  General  Government  itself,  out  of  whose  territory — either 
acquired  originally  by  the  wealth  or  conquest  of  the  Federal 
Government,  or  derived  directly  or  indirectly  through  the 
cession  or  partition  or  separation  of  the  original  Colonies — 
they  have  sprung  into  existence.  Of  these  eleven  allied 
and  confederate  States,  but  four  came  from  the  stock  of  the 
original  thirteen,  and  seven  derived  their  whole  power  and 
authority  from  the  permission  of  the  Constitution  of  the  United 
States,  and  have  sprung  into  existence,  with  the  breath  of 
their  lives  breathed  into  them  through  the  Federal  Govern 
ment.  When  the  State  of  Louisiana  talks  of  its  right  to  secede 
by  reason  of  its  sovereignty,  by  reason  of  its  being  one  of  the 
creators  of  the  Federal  Government,  and  of  the  federal  Con 
stitution — one  of  the  actors  in  the  principles  of  the  American 
Revolution,  and  in  the  conquest  of  our  liberties  from  the  Eng 
lish  power — we  may  well  lift  our  hands  in  surprise  at  the  arro 
gance  of  such  a  suggestion.  Why,  what  was  Louisiana,  in  all 
her  territory,  at  the  time  of  the  great  transaction  of  the  Federal 
Revolution,  and  for  a  long  time  afterwards,  but  a  province  of 
Spain,  first,  and  afterwards  of  France?  How  did  her  terri 
tory — the  land  upon  which  her  population  and  her  property 
rest — come  to  be  a  part  of  our  territory,  and  to  give  support  to 
a  State  government,  and  to  State  interests  ?  Why,  by  its  ac 
quisition,  under  the  wise  policy  of  Mr.  Jefferson,  early  in  this 


OF   THE   SCHOONER   SAVANNAH.  339 

century,  upon  the  opportunity  offered,  by  the  necessity  or  policy 
of  the  Emperor  Napoleon,  for  its  purchase,  by  money,  as  you 
would  buy  a  ship,  or  a  strip  of  land  to  build  a  fort  on.  Coining 
thus  to  the  United  States,  by  its  purchase,  how  did  Louisiana 
come  to  be  set  apart,  carved  out  of  the  immense  territory 
comprehended  under  the  name  of  Louisiana,  but  by  lines  of 
division  and  concession  of  power,  proceeding  from  the  Gov 
ernment  of  the  United  States?  And  why  did  we  purchase  it? 
We  purchased  it  preliminarily,  not  so  much  to  seize  the  oppor 
tunity  for  excluding  from  a  foothold  on  this  Continent  a  great 
foreign  Power,  which,  although  its  teiritory  here  was  waste 
and  uninhabited,  had  the  legal  right  to  till  it,  and  might,  in  the 
course  of  time,  fill  it,  with  a  population  hostile  in  interests  to 
our  own, — not  so  much  for  this  remote  contingency,  as  to 
meet  the  actual  and  pressing  necessity,  on  the  part  of  the 
population  that  was  beginning  to  till  up  the  left  or  eastern 
bank  of  the  Mississippi,  from  its  source  to  near  its  mouth, 
that  they  should  have  the  mouth  of  the  Mississippi  also  within 
their  territory,  governed  by  the  same  laws  and  under  the  same 
Government.  And  now,  forsooth,  the  money  and  the  policy 
of  the  United  States  having  acquired  this  territory,  and  con 
ceded  the  political  rights  contained  in  the  Constitution  of 
Louisiana,  we  are  to  justify  the  secession  of  the  territory  of 
Louisiana,  carrying  the  mouth  of  the  Mississippi  with  her,  on 
the  theory  that  she  was  one  of  the  original  sovereignties,  and 
one  of  the  creators  of  the  Constitution  of  the  United  States! 
Well,  gentlemen,  how  are  our  learned  friends  to  escape  from 
this  dilemma  ?  Are  they  to  say  that  our  constituted  Govern 
ment,  complex,  composed  of  State  and  of  Federal  power,  has 
two  sets  of  State  and  Federal  relations  within  it,  to  wit,  that 
which  existed  between  the  General  Government  and  the  thir 
teen  sovereign,  original  States,  and  that  which  exists  between 
the  Federal  Government  and  the  other  twenty-one  States  of  the 
Union  ?  Is  it  to  follow,  from  this  severance,  that  these  original 
Colonies,  declaring  their  independence — South  Carolina,  North 
Carolina,  Virginia  and  Georgia — are  to  draw  back  to  them 
selves  the  portions  of  their  original  territory  that  have  since, 
under  the  authority  of  the  Constitution,  been  formed  into 
separate  communities?  Our  Constitution  was  made  by  and 
between  the  States,  and  the  people  of  the  States — not  for 
themselves  alone — not  limited  to  existing  territory,  and  arranged 
State  and  Provincial  Governments — but  made  as  a  Govern 
ment,  and  made  with  principles  in  respect  to  Government  that 
should  admit  of  its  extension  by  purchase,  by  conquest,  by 
all  the  means  that  could  bring  accretion  to  a  people  in  terri 
tory  and  in  strength,  and  that  should  be,  in  its  principles,  a 


340  TRIAL    OF   THE    OFFICERS   AND   CREW 

form  of  Government  applicable  to  and  sufficient  for  the  old 
and  the  new  States,  and  the  old  and  the  new  population.  I 
need  but  refer  to  the  later  instances,  where,  by  purchase,  we 
acquired  Florida,  also  one  of  the  seceded  States,  and  where,  by 
our  armies,  we  gained  the  western  coast  of  the  Pacific.  Are 
these  the  relations  into  which  the  power,  and  blood,  and 
treasure  of  this  Government  bring  it,  in  respect  to  the  new 
communities  and  new  States  which,  under  its  protection,  and 
from  its  conceded  power,  have  derived  their  very  existence  ? 
Why,  gentlemen,  our  Government  is  said,  by  those  who  com 
plain  of  it,  or  who  expose  what  they  regard  as  its  difficulties, 
to  have  one  element  of  weakness  in  it,  to  wit,  the  possibility  of 
discord  between  the  State  and  the  Federal  authorities.  But,  if 
you  adopt  the  principle,  that  there  is  one  set  of  rules,  one  set 
of  rights,  between  the  Federal  Government  and  the  original 
States  that  formed  the  Union,  and  another  set  of  rules  between 
the  Federal  Government  and  the  new  States,  I  would  like  to 
know  what  becomes  of  the  provision  of  the  Constitution,  that 
the  new  States  may  be  admitted  on  the  same  footing  with  the 
old  ?  What  becomes  of  the  harmony  and  accord  among  the 
local  Governments  of  this  great  nation,  which  we  call  State 
Governments,  if  there  be  this  superiority,  in  every  political 
sense,  on  the  part  of  the  old  States,  and  this  absolute  infe 
riority  and  subjection  on  the  part  of  the  new  ? 

And  now,  gentlemen,  having  done  with  this  doctrine  of  se 
cession,  as  utterly  inconsistent  with  the  theory  of  our  Govern 
ment,  and  utterly  unimportant,  as  a  practical  right,  for  any  sup- 
posable  or  even  imaginable  case  that  may  be  suggested,  I  come 
to  consider  the  question  of  the  right  of  revolution.  I  have 
shown  to  you  upon  what  principles,  and  upon  what  substantial 
question,  between  being  subjects  as  slaves,  or  being  partici 
pants  in  the  British  Government,  our  Colonies  attempted  and 
achieved  their  independence.  As  I  have  said  to  you,  a  very 
brief  experience  showed  that  they  needed,  to  meet  the  exigen 
cies  of  their  situation,  the  establishment  of  a  Government  that 
should  be  in  accordance  with  the  wishes  and  spirit  of  the  peo 
ple,  in  regard  of  freedom,  and  yet  should  be  of  such  strength, 
and  such  unity,  as  would  admit  of  prosperity  being  enjoyed 
under  it,  and  of  its  name  and  power  being  established  among  the 
nations  of  the  earth.  Now,  without  going  into  the  theories  of 
Government,  and  of  the  rights  of  the  people,  and  of  the  rights  of 
the  rulers,  to  any  great  extent,  we  all  know  that  there  has  been 
every  variety  of  experiment  tried,  in  the  course  of  human 
affairs,  between  the  great  extreme  alluded  to  by  my  learned 
friend  (Mr.  Brady)  of  the  slavery  of  Egyptians  to  their  king — the 
extreme  instance  of  an  entire  population  scarcely  lifted  above  the 


OF   THE    SCHOONER    SAVANNAH.  341 

brutes  in  their  absolute  subjection  to  the  tyranny  of  a  ruler,  so 
that  the  life,  and  the  soul,  and  the  sweat,  and  the  blood  of  a 
whole  generation  of  men  are  consumed  in  the  task  of  build 
ing  a  mausoleum  as  the  grave  of  a  kin^ — and  the  later  efforts 
of  our  race,  culminating  in  the  happy  success  of  our  own  form 
of  Government,  to  establish,  on  foundations  where  liberty 
and  law  find  equal  support,  the  principle  of  Government, 
that  Government  is  by,  and  for,  and  from  all  the  people — that 
the  rulers,  instead  of  being  their  masters  and  their  owners,  are 
their  agents  and  their  servants — and  that  the  greatest  good  of 
the  greatest  number  is  the  plain,  practical  and  equal  rule  which, 
by  gift  from  our  Creator,  we  enjoy. 

Now  this,  you  will  observe,  is  a  question  which  readily  re 
ceives  our  acceptance.  But  the  great  problem  in  reference  to 
the  freedom  of  a  people,  in  the  establishment  of  their  Govern 
ment,  presents  itself  in  this  wise  :  The  people,  in  order  to  main 
tain  their  freedom,  must  be  masters  of  their  Government,  so 
that  the  Government  may  not  be  too  strong,  in  its  arrangement 
of  power,  to  overmaster  the  people  ;  but  yet,  the  Government 
must  be  strong  enough  to  maintain  and  protect  the  independ 
ence  of  the  nation  against  the  aggressions,  the  usurpations,  and 
the  oppressions  of  foreign  nations.  Here  you  have  a  difficulty 
raised  at  once.  You  expose  either  the  freedom  of  the  nation, 
by  making  the  Government  too  strong  for  the  preservation  of 
individual  independence,  or  you  expose  its  existence,  by  making 
it  too  weak  to  maintain  itself  against  the  passions,  interests  and 
power  of  neighboring  nations.  If  you  have  a  large  nation — 
counting  its  population  by  many  millions,  and  the  circumfer 
ence  of  its  territory  by  thousands  of  miles — how  can  you  ar 
range  the  strength  of  Government,  so  that  it  shall  not,  in  the 
interests  of  human  passions,  grow  too  strong  for  the  liberties  of 
the  people  ?  And  if,  abandoning  in  despair  that  effort  and  that 
hope,  you  circumscribe  the  limits  of  your  territory,  and  reduce 
your  population  within  a  narrow  range,  how  can  you  have  a 
Government  and  a  nation  strong  enough  to  maintain  itself  in 
the  contests  of  the  great  family  of  nations,  impelled  and  urged 
by  interests  and  passions  ? 

Here  is  the  first  peril,  which  has  never  been  successfully 
met  and  disposed  of  in  any  of  the  forms  of  Government  that 
have  been  known  in  the  history  of  mankind,  until,  at  least,  our 
solution  of  it  was  attempted,  and  unless  it  has  succeeded  and 
can  maintain  itself.  But,  again,  this  business  of  self-govern 
ment  by  a  people  has  but  one  practical  and  sensible  spirit  and 
object.  The  object  of  free  Government  is,  that  the  people, 
as  individuals,  may,  with  security,  pursue  their  own  happiness. 
We  do  not  tolerate  the  theory  that  all  the  people  constituting 
the  nation  are  absorbed  into  the  national  growth  and  life.  The 


34:2  TRIAL   OF   THE   OFFICERS   AND   GREW 

reason  why  we  want  a  free  Government  is,  that  we  may  be  hap 
py  under  it,  and  pursue  our  own  activities  according  to  our 
nature  and  our  faculties.  But,  you  will  see,  at  once,  that  it  is 
of  the  essence  of  being  able  to  pursue  our  own  interests  under 
the  Government  under  which  we  live,  that  we  can  do  so  ac 
cording  to  our  own  notions  of  what  they  are,  or  the  notions  of 
those  who  are  intelligently  informed  of,  participate  in,  and  sym 
pathize  with,  those  interests.  Therefore,  it  seems  necessary 
that  all  of  the  every-day  rights  of  property,  of  social  arrange 
ments,  of  marriage,  of  contracts — everything  that  makes  up  the 
life  of  a  social  community — shall  be  under  the  control,  not  of  a 
remote  or  distant  authority,  but  of  one  that  is  limited  to,  and 
derives  its  ideas  and  principles  from,  a  local  community. 

Now,  how  can  this  be  in  a  large  nation — in  a  nation  of 
thirty  millions,  distributed  over  a  zone  of  the  earth?  How  are 
we  to  get  along  in  New  York,  and  how  are  others  to  get  along 
in  South  Carolina,  and  others  in  New  England,  in  the  every 
day  arrangements  that  proceed  from  Government,  and  affect 
the  prosperity,  the  freedom,  the  independence,  the  satisfaction 
of  the  community  with  the  condition  in  which  it  lives  I 
How  can  we  get  along,  if  all  these  minute  and  every-day 
arrangements  are  to  proceed  from  a  Government  which  has  to 
deal  with  the  diverse  opinions,  the  diverse  sentiments,  the 
diverse  interests,  of  so  extensive  a  nation?  But  if,  fleeing 
from  this  peril,  you  say  that  you  may  reduce  your  nation, 
you  fall  into  another  difficulty.  The  advanced  civilization 
of  the  present  day  requires,  for  our  commercial  activity,  for 
our  enjoyment  of  the  comforts  and  luxuries  of  life,  that  the 
whole  globe  shall  be  ransacked,  and  that  the  power  of  the  na 
tion  which  we  recognize  as  our  superior  shall  be  able  to  protect 
our  citizens  in  their  enterprises,  in  their  activities,  in  their  ob 
jects,  all  over  the  world.  How  can  a  little  nation,  made  up  of 
Massachusetts,  or  made  up  of  South  Carolina,  have  a  flag  and 
a  power  which  can  protect  its  commerce  in  the  East  Indies  and 
in  the  Southern  Ocean?  Again — we  find  that  nations,  unless 
they  are  separated  by  wide  barriers,  necessarilv,  in  the  course 
of  human  affairs,  come  into  collision  ;  and,  as  I  have  shown  to 
you,  the  only  arbitrament  for  their  settlement  is  war.  But  war 
is  a  scourge — an  unmitigated  scourge — so  long  as  it  lasts,  and 
in  itself  considered.  But  for  objects  which  make  it  meritori 
ous  and  useful,  it  is  a  scourge  never  to  be  tolerated.  It  puts 
in  abeyance  all  individual  rights,  interests,  and  schemes,  until 
the  great  controversy  is  settled. 

If,  then,  we  are  a  small  nation,  surrounded  on  all  sides  by 
other  nations,  with  no  natural  barriers,  with  competing  inter 
ests,  with  occasions  of  strife  and  collision  on  all  sides,  how  can 
we  escape  war,  as  a  necessary  result  of  that  miserable  situa- 


OF   THE   SCHOONER   SAVANNAH.  343 

tion  ?  But  war  strengthens  the  power  of  Government,  weakens 
the  power  of  the  individual,  and  establishes  maxims  and  creates 
forces,  that  go  to  increase  the  weight  and  the  power  of  Gov 
ernment,  and  to  weaken  the  rights  of  the  people.  Then,  we 
see  tliat,  to  escape  war,  we  must  either  establish  a  great  nation, 
which  occupies  an  extent  of  territory,  and  has  a  fund  of  power 
sufficient  to -protect  itself  against  border  strifes,  and  against  the 
ambition,  the  envy,  the  hatred  of  neighbors;  or  else  one  which, 
being  small,  is  exposed  to  war  from  abroad  to  subjugate  it,  or 
to  the  greater  peril  to  its  own  liberties,  of  war  made  by  its  own 
Government,  thus  establishing  principles  and  introducing 
interests  which  are  inconsistent  with  liberty. 

I  have  thus  ventured,  gentlemen,  to  lay  before  you  some 
of  these  general  principles,  because,  in  the  course  of  the  argu 
ments  of  my  learned  friends,  as  well  as  in  many  of  the  discus 
sions  before  the  public  mind,  it  seems  to  be  considered  that 
the  ties,  the  affections  and  the  interests,  which  oblige  us  to  the 
maintenance  of  this  Government  of  ours,  find  their  support 
and  proper  strength  and  nourishment  only  in  the  sentiments  of 
patriotism  and  duty,  because  it  happens  to  be  our  own  Govern 
ment  ;  and  that,  when  the  considerations  of  force  or  of  feeling 
which  bring  a  people  to  submit  to  a  surrender  of  their  Govern 
ment,  or  to  a  successful  conquest  of  a  part  of  their  territory, 
or  to  a  WTesting  of  a  part  of  their  people  from  the  control  of 
the  Government,  shall  be  brought  to  bear  upon  us,  we  shall  be, 
in  our  loss  and  our  surrender,  only  suffering  what  other  nations 
have  been  called  upon  to  lose  and  to  surrender,  and  that  it 
will  be  but  a  change  in  the  actual  condition  of  the  country 
and  its  territory.  But  you  will  perceive  that,  by  the  superior 
fortune  which  attended  our  introduction  into  the  family  of  na 
tions,  and  by  the  great  wisdom,  forecast,  and  courage  of  our 
ancestors,  we  avoided,  at  the  outset,  all  the  difficulties  between 
a  large  territory  and  a  numerous  population  on  the  one  hand, 
and  a  small  territory  and  a  reduced  population  on  the  other 
hand,  and  all  those  opposing  dangers  of  the  Government  be 
ing  either  too  weak  to  protect  the  nation,  or  too  strong,  and 
thus  oppressive  of  the  people,  by  a  distribution  of  powers  and 
authorities,  novel  in  the  affairs  of  men,  dependent  on  experi 
ment,  and  to  receive  its  final  fate  as  the  result  of  that  experi 
ment.  We  went  on  this  view — that  these  feeble  Colonies 
had  not,  each  in  itself,  the  life  and  strength  of  a  nation ;  and, 
yet,  these  feeble  Colonies,  and  their  poor  and  sparse  popula 
tion,  were  nourished  on  a  love  of  liberty  and  self-government. 
These  sentiments  had  carried  them  through  a  successful  war 
against  one  of  the  great  powers  of  the  earth.  They  were  not 
to  surrender  that  for  which  they  had  been  fighting  to  any 
scheme,  to  any  theory  of  a  great,  consolidated  nation,  the  Gov- 


344  TRIAL   OF   THE    OFFICERS  AND   CREW 

eminent  of  which  should  subdue  the  people  and  re-introduce 
the  old  fashion  in  human  affairs — that  the  people  were  made  for 
the  rulers,  and  not  the  rulers  by  and  for  the  people.  They 
undertook  to  meet,  they  did  meet,  this  difficult  dilemma  in  the 
constitution  of  Government,  by  separating  the  great  fund  of 
power,  and  reposing  it  in  two  distinct  organizations.  They 
reserved  to  the  local  communities  the  control  of  their  domestic 
affairs,  and  attributed  the  maintenance  and  preservation  of 
them  to  the  State  governments.  They  undertook  to  collect 
and  deposit,  under  the  form  of  a  written  Constitution,  with  the 
general  Government,  all  those  larger  and  common  interests 
which  enter  into  the  conception  and  practical  establishment  of 
a  distinct  nation  among  the  nations  of  the  earth,  and  determ 
ined  that  they  would  have  a  central  power  which  should  be 
adequate,  by  drawing  its  resources  from  the  patriotism,  from 
the  duty,  from  the  wealth,  from  the  numbers,  of  a  great  nation, 
to  represent  them  in  peace  and  in  war, — a  nation  that  could 
protect  the  interests,  encourage  the  activities,  and  maintain  the 
development  of  its  people,  in  spite  of  the  opposing  interests  or 
the  envious  or  hostile  attacks  of  any  nation.  They  determined 
that  this  great  Government,  thus  furnished  with  this  range  of 
authority  and  this  extent*  of  power,  should  not  have  anything 
to  do  with  the  every-day  institutions,  operations  and  social  ar 
rangements  of  the  community  into  which  the  vast  population 
and  territory  of  the  nation  were  distributed.  They  determined 
that  the  people  of  Massachusetts,  the  people  of  New  York,  and 
the  people  of  South  Carolina,  each  of  them,  should  have  their 
own  laws  about  agriculture,  about  internal  trade,  about  mar 
riage,  about  apprenticeship,  about  slavery,  about  religion,  about 
schools,  about  all  the  every-day  pulsations  of  individual  life 
and  happiness,  controlled  by  communities  that  moved  with  the 
same  pulsations,  obeyed  the  same  instincts,  and  were  animated 
by  the  same  purposes.  And,  as  this  latter  class  of  authority 
contains  in  itself  the  principal  means  of  oppression  by  a  Gov 
ernment,  and  is  the  principal  point  where  oppression  is  to  be 
feared  by  a  people,  they  had  thus  robbed  the  new  system  of  all 
the  dangers  which  attend  the  too  extensive  powers  of 
a  Government.  They  divided  the  fund  of  power,  to  prevent  a 
great  concentration  and  a  great  consolidation  of  the  army  of 
magistrates  and  officers  of  the  law  and  of  the  Government  which 
would  have  been  combined  by  a  united  and  consolidated 
authority,  having  jurisdiction  of  all  the  purposes  of  Govern 
ment,  of  all  the  interests  of  citizens,  and  of  the  entire  population 
and  entire  territory  in  these  respects.  .  They  thus  made  a 
Government,  complex  in  its  arrangements,  which  met  those 
opposing  difficulties,  inherent  in  human  affairs,  that  make  the 
distinction  between  free  Governments  and  oppressive  Govern- 


OF    THE    SCHOONER    SAVANNAH.  345 

ments.  They  preserved  the  people  in  their  enjoyment  and  con 
trol  of  all  the  local  matters  entering  into  their  every-day  life, 
and  yet  gave  them  an  establishment,  springing  from  the 
same  interests  and  controlled  by  the  same  people,  which 
has  sustained  and  protected  us  in  our  relations  to  the  family 
of  nations  on  the  high  seas  and  in  the  remote  corners  of  the 
world. 

Now,  this  is  the  scheme,  and  this  is  the  purpose,  with  which 
this  Government  was  formed ;  and  you  will  observe  that  there 
is  contained  in  it  this  separation,  and  this  distribution.  And 
our  learned  friends,  who  have  argued  before  you  respecting 
this  theory,  and  this  arrangement  and  practice  of  the  power  of 
a  Government,  as  inconsistent  with  the  interests  and  the  freedom 
of  the  people,  have  substantially  said  to  you  that  it  was  a  whim 
sical  contrivance,  that  it  was  an  impossible  arrangement  of 
inconsistent  principles,  and  that  we  must  go  back  to  a  simple 
Government  composed  of  one  of  the  States,  or  of  a  similar 
arrangement  of  territory  and  people,  which  would  make  each 
of  us  a  weak  and  contemptible  power  in  the  family  of  nations — 
or  we  must  go  back  to  the  old  consolidation  of  power,  such 
as  is  represented  by  the  frame  of  France  or  England  in  its 
Government,  or,  more  distinctly,  more  absolutely,  and  more 
likely  to  be  the  case,  for  so  vast  a  territory  and  so  extensive  a 
population  as  ours,  to  the  simple  notion  of  Russian  Au 
tocracy. 

That,  then,  being  the  object,  and  that  the  character,  of  our 
institutions,  and  this  right  of  secession  not  being  provided  for,  or 
imagined,  or  tolerated  in  the  scheme,  let  us  look  at  the 
right  of  revolution,  as  justifying  an  attempt  to  overthrow  the 
Government ;  and  let  us  look  at  the  occasions  of  revolution, 
which  are  pretended  here,  as  giving  a  support,  before  the  world, 
in  the  forum  of  conscience,  and  in  the  judgment  of  mankind,  for 
the  exercise  of  that  right. 

And  first,  let  me  ask  you  whether,  in  all  the  citations  from 
the  great  men  of  the  Revolution,  and  in  the  later  stages  of  our 
history,  any  opinion  has  been  cited  which  has  condemned  this 
scheme,  as  unsuitable  and  insufficient  for  the  freedom  and 
happiness  of  the  people,  if  it  can  be  successful?  I  think 
not.  The  whole  history  of  the  country  is  full  of  records  of 
the  approval,  of  the  support,  of  the  admiration,  of  the 
reverent  language  which  our  people  at  large,  and  the  great 
leaders  of  public  opinion — the  great  statesmen  of  the  country- 
have  spoken  of  this  system  of  Government.  Let  me  ask  your 
attention  to  but  two  encomiums  upon  it,  as  represented  by' that 
central  idea  of  a  great  nation,  and  yet  a  divided  and  local  ad 
ministration  of  popular  interests — to  wit,  one  in  the  first  stage 
of  its  adoption,  before  its  ratification  by  the  people  was  com- 


346  TRIAL   OF   THE    OFFICERS    AND    CREW 

plete ;  and  the  other,  a  speech  made  at  the  very  eve  of,  if  not 
in  the  very  smoke  of,  this  hostile  dissolution  of  it. 

Mr.  Pinckney,  of  South  Carolina,  who  had  been  one  of  the 
delegates  from  that  State  in  the  National  Convention,  and  had 
co-operated  with  the  Northern  statesmen,  and  with  the  great 
men  of  Yirginia,  in  forming  the  Government  as  it  was,  in 
urging  on  the  Convention  of  South  Carolina  the  adoption  of 
the  Constitution,  and  its  ratification,  said  : 

41  To  the  Union  we  will  look  up  as  the  temple  of  our  freedom, — a  temple 
founded  in  the  affections  and  supported  by  the  virtue  of  the  people.  Here 
we  will  pour  out  our  gratitude  to  the  Author  of  all  good,  for  suffering  us  to 
participate  in  the  rights  of  a  people  who  govern  themselves.  Is  there,  at  this 
moment,  a  nation  on  the  earth  which  enjoys  this  right,  where  the  true  princi 
ples  of  representation  are  understood  and  practised,  and  where  all  authority 
flows  from,  and  returns  at  stated  periods  to,  the  people  ?  I  answer,  there  is 
not.  Can  a  Government  be  said  to  be  free  where  those  do  not  exist  ?  It 
cannot.  On  what  depends  the  enjoyment  of  those  rare,  inestimable  rights? 
On  the  firmness  and  on  the  power  of  the  Union  to  protect  and  defend 
them." 

Had  we  anything  from  that  great  patriot  and  statesman  of 
this  right  of  secession,  or  independence  of  a  State,  as  an  im 
portant  or  a  useful  element  in  securing  these  rare,  these  unheard 
of,  these  inestimable  privileges  of  Government,  which  the 
Author  of  all  good  had  suffered  the  people  of  South  Carolina 
to  participate  in?  No — they  depended  "on  the  firmness  and 
on  the  power  of  the  Union  to  protect  and  defend  them."  Mr. 
Pinckney  goes  on  to  say  : 

"  To  the  philosophic  mind,  how  new  and  awful  an  instance  do  the  United 
States  at  present  exhibit  to  the  people  of  the  world  !  They  exhibit,  sir,  the 
first  instance  of  a  people  who,  being  thus  dissatisfied  with  their  Government, 
unattacked  by  a  foreign  force  and  undisturbed  by  domestic  uneasiness,  coolly 
and  deliberately  resort  to  the  virtue  and  good  sense  of  the  country  for  a  cor 
rection  of  their  public  errors." 

That  is,  for  the  abandonment  of  the  weakness  and  the 
danger  of  the  imperfect  Confederation,  and  the  adoption  of  the 
constitutional  and  formal  establishment  of  Federal  power.  Mr. 
Pinckney  goes  on  to  say  : 

"  It  must  be  obvious  that,  without  a  superintending  Government,  it  is  im 
possible  the  liberties  of  this  country  can  long  be  secure.  Single  and  uncon 
nected,  how  weak  and  contemptible  are  the  largest  of  our  States !  how  unable 
to  protect  themselves  from  external  or  domestic  insult !  how  incompetent,  to 
national  purposes,  would  even  the  present  Union  be  !  how  liable  to  intestine 
war  and  confusion  !  how  little  able  to  secure  the  blessings  of  peace  !  Let  us, 
therefore,  be  careful  in  strengthening  the  Union.  Let  us  remember  we  are 
bounded  by  vigilant  and  attentive  neighbors  " — (and  now  Europe  is  within 
ten  days,  and  they  are  near  neighbors) — "who  view  with  a  jealous  eye  our 
rights  to  empire." 


OF   THE    SCHOONER    SAVANNAH.  347 

Pursuing  my  design  of  limiting  my  citations  of  the  opinions 
of  public  men  to  those  who  have  received  honor  from,  and  con 
ferred  honor  on,  that  portion  of  our  country  and  those  of  our 
countrymen  now  engaged  in  this  strife  with  the  General  Gov 
ernment,  let  me  ask  your  attention  to  a  speech  delivered  by  Mr. 
Stephens,  now  the  Vice-President  of  the  so-called  Confederate 
States,  on  the  very  eve  of,  and  protesting  against,  this  effort 
to  dissolve  the  Union.  I  read  from  page  220  and  subsequent 
pages  of  the  documents  that  have  been  the  subject  of  reference 
heretofore : 

"  The  first  question  that  presents  itself" — (says  Mr.  Stephens  to  the  assem 
bled  Legislature  of  Georgia,  of  which  he  was  not  a  member,  but  which,  as  an 
eminent  and  leading  public  man,  he  had  been  invited  to  address) — "is,  shall  the 
people  of  the  South  secede  from  the  Union  in  consequence  of  the  election  of 
Mr.  Lincoln  to  the  Presidency  of  the  United  States  ?  My  countrymen,  I  tell 
you  frankly,  candidly,  and  earnestly,  that  I  do  not  think  that  they  might.  In 
my  judgment,  the  election  of  no  man,  constitutionally  elected  to  that  high 
office,  is  sufficient  cause  for  any  State  to  separate  from  the  Union.  It  ought 
to  stand  by  and  aid  still  in  maintaining  the  Constitution  of  the  country.  To 
make  a  point  of  resistance  to  the  Government — to  withdraw  from  it  because  a 
man  has  been  constitutionally  elected — puts  us  in  the  wrong.  We  are  pledged  to 
maintain  the  Constitution.  Many  of  us  have  sworn  to  support  it. 
********** 

"  But  it  is  said  Mr.  Lincoln's  policy  and  principles  are  against  the  Consti 
tution,  and  that  if  he  carries  them  out  it  will  be  destructive  of  our  rights.  Let 
us  not  anticipate  a  threatened  evil.  If  he  violates  the  Constitution,  then  will 
come  our  time  to  act.  Do  not  let  us  break  it  because,  forsooth,  he  may.  If 
he  does,  that  is  the  time  for  us  to  strike.  *  *  My  countrymen,  I  am  not  of 
those  who  believe  this  Union  has  been  a  curse  up  to  this  time.  True  men — 
men  of  integrity — entertain  different  views  from  me  on  this  subject.  I  do  not 
question  their  right  to  do  so  ;  I  would  not  impugn  their  motives  in  so  doing. 
Nor  will  I  undertake  to  say  that  this  Government  of  our  fathers  is  perfect. 
There  is  nothing  perfect  in  this  world,  of  a  human  origin.  Nothing  connected 
with  human  nature,  from  man  himself  to  any  of  his  works.  You  may  select 
the  wisest  and  best  men  for  your  Judges,  and  yet  how  many  defects  are  there 
in  the  administration  of  justice  ?  You  may  select  the  wisest  and  best  men  for 
your  legislators,  and  yet  how  many  defects  are  apparent  in  your  laws?  And 
it  is  so  in  our  Government 

"  But  that  this  Government  of  our  fathers,  with  all  its  defects,  comes 
nearer  the  objects  of  all  good  Governments  than  any  on  the  face  of  the  earth, 
is  my  settled  conviction.  Contrast  it  now  with  any  on  the  face  of  the  earth." 
["England,"  said  Mr.  Toombs.]  "  England,  my  friend  says.  Well,  that  is  the 
next  best,  I  grant ;  but  I  think  we  have  improved  upon  England.  Statesmen 
tried  their  apprentice  hand  on  the  Government  of  England,  and  then  ours 
was  made.  Ours  sprung  from  that,  avoiding  many  of  its  defects,  taking  most 
of  the  good  and  leaving  out  many  of  its  errors,  and,  from  the  whole,  construct 
ing  and  building  up  this  model  Republic — the  best  which  the  history  of  the 
world  gives  any  account  of. 

"  Compare,  my  friends,  this  Government  with  that  of  Spain,  Mexico,  the 
South  American  Republics,  Germany,  Ireland — are  there  any  sons  of  that 
down-trodden  nation  here  to-night? — Prussia,  or,  if  you  travel  further  east, 
to  Turkey  or  China.  Where  will  you  go,  following  the  sun  in  his  circuit 
round  our  globe,  to  find  a  Government  that  better  protects  the  liberties  of  its 


34:8  TRIAL    OF   THE   OFFICERS    AND   CREW 

people,  and  secures  to  them  the  blessings  we  enjoy  ?  I  think  that  one  of  the 
evils  that  beset  us  is  a  surfeit  of  liberty,  an  exuberance  of  the  priceless 
blessings  for  which  we  are  ungrateful. 

"  VYhen  I  look  around  and  see  our  prosperity  in  every  thing — agricul 
ture,  commerce,  art,  science,  and  every  department  of  education,  physical 
and  mental,  as  well  as  moral  advancement,  and  our  colleges — I  think,  in  the 
face  of  such  an  exhibition,  if  we  can,  without  the  loss  of  power,  or  any 
essential  right  or  interest,  remain  in  tha  Union,  it  is  our  duty  to  ourselves 
and  to  posterity  to — let  us  not  too  readily  yield  to  this  temptation — do  so. 
Our  first  parents,  the  great  progenitors  of  the  human  race,  were  not  without 
a  like  temptation  when  in  the  garden  of  Eden.  They  were  led  to  believe 
that  their  condition  would  be  bettered — that  their  eyes  would  be  opened — 
and  that  they  would  become  as  gods.  They  in  an  evil  hour  yielded.  Instead 
of  becoming  gods,  they  only  saw  their  own  nakedness. 

"  I  look  upon  this  country,  with  our  institutions,  as  the  Eden  of  the  world, 
the  paradise  of  the  Universe.  It  may  be  that  out  of  it  we  may  become 
greater  and  more  prosperous,  but  I  am  candid  and  sincere  in  telling  you 
that  I  fear  if  we  rashly  evince  passion,  and,  without  sufficient  cause,  shall 
take  that  step,  that  instead  of  becoming  greater  or  more  peaceful,  prosperous 
and  happy — instead  of  becoming  gods — we  will  become  demons,  and,  at  no 
distant  day,  commence  cutting  one  another's  throats." 

Still  speaking  of  onr  Government,  lie  says  : 

"  Thus  far,  it  is  a  noble  example,  worthy  of  imitation.  The  gentleman 
(Mr.  Cobb)  the  other  night  said  it  had  proven  a  failure.  A  failure  in  what? 
In  growth  ?  Look  at  our  expanse  in  national  power.  Look  at  our  pop 
ulation  and  increase  in  all  that  makes  a  people  great.  A  failure  ?  Why,  we 
are  the  admiration  of  the  civilized  world,  and  present  the  brightest  hopes  of 
mankind. 

"Some  of  our  public  men  have  failed  in  their  aspirations  ;  that  is  true, 
and  from  that  comes  a  great  part  of  our  troubles. 

"  No,  there  is  no  failure  of  this  Government  yet.  We  have  made  great 
advancement  under  the  Constitution,  and  I  cannot  but  hope  that  we  shall 
advance  higher  still.  Let  us  be  true  to  our  cause." 

Now,  wherein  is  it  that  this  Government  deserves  these 
encomiums,  which  come  from  the  intelligent  and  profound 
wisdom  of  statesmen,  and  gush  spontaneously  from  the  un 
learned  hearts  of  the  masses  of  the  people  ?  Why,  it  is  pre 
cisely  in  this  point,  of  its  not  being  a  consolidated  Govern 
ment,  and  of  its  not  being  a  narrow,  and  feeble,  and  weak 
community  and  Government.  Indeed,  I  may  be  permitted  to 
say  that  I  once  heard,  from  the  lips  of  Mr.  Calhoun  himself, 
this  recognition,  both  of  the  good  fortune  of  this  country  in 
possessing  such  a  Government,  and  of  the  principal  sources  to 
which  the  gratitude  of  a  nation  should  attribute  that  good  for 
tune.  I  heard  him  once  say,  that  it  was  to  the  wisdom,  in  the 
great  Convention,  of  the  delegates  from  the  State  of  Connecti 
cut,  and  of  Judge  Patterson,  a  delegate  from  the  State  of  New 
Jersey,  that  we  owed  the  fact  that  this  Government  was  what  it 
was,  the  best  Government  in  the  world,  a  confederated  Govern 
ment,  and  not  what  it  would  have  been — and,  apparently,  would 
have  been  but  for  those  statesmen — the  worst  Government  in 


OF    THE    SCHOONER    SAVANNAH.  349 

the  world — a  consolidated  Government.     These  statesmen,  he 
said,  were  wiser  for  the  South  than  the  South  was  for  herself. 

I  need  not  say  to  you,  gentlemen  that,  if  all  this  encomium 
on  the  great  fabric  of  our  Government  is  brought  to  naught, 
and  is  made  nonsense  by  the  proposition  that,  although  thus 
praised  and  thus  admired,  it  contains  within  itself  the  princi 
ple,  the  right,  the  duty  of  being  torn  to  pieces,  whenever  a 
fragment  of  its  people  shall  be  discontented  and  desire  its  de 
struction,  then  all  this  encomium  comes  but  as  sounding  brass 
and  a  tinkling  cymbal ;  and  the  glory  of  our  ancestors,  Wash 
ington,  and  Madison,  and  Jefferson,  and  Adams — the  glory  of 
their  successors,  Webster,  and  Clay,  and  Wright,  and  even 
Calhoun — for  he  was  no  votary  of  this  nonsense  of  secession — 
passes  away,  and  their  fame  grows  visibly  paler,  and  the 
watchful  eye  of  the  English  monarchy  looks  on  for  the  bitter 
fruits  to  be  reaped  by  us  for  our  own  destruction,  and  as  an 
example  to  the  world — the  bitter  fruits  of  the  principle  of  rev 
olution  and  of  the  right  of  self-government  which  we  dared  to 
assert  against  her  perfect  control.  Pointing  to  our  exhibition 
of  an  actual  concourse  of  armies,  she  will  say — "  It  is  in  the 
dragon's  teeth,  in  the  right  of  rebellion  against  the  monarchy 
of  England,  that  these  armed  hosts  have  found  their  seed  and 
sprung  up  on  your  soil." 

Now,  gentlemen,  such  is  our  Government,  such  is  its  benefi 
cence,  such  is  its  adaptation,  and  such  are  its  successes.     Look 
at  its  successes.     Not  three-quarters  of  a  century  have  passed 
away  since  the  adoption  of  its  Constitution,  and  now  it  rules 
over  a  territory  that  extends  from  the  Atlantic  to  the  Pacific. 
It  fills  the  wide  belt  of  the  earth's  surface  that  is  bounded  by  the 
provinces  of  England  on  the  North,  and  by  the  crumbling,  and 
weak,  and  contemptible  Governments  or  no  Governments  that 
shake  the  frame  of  Mexico  on  the  South.     Have  Nature  and 
Providence  left  us  without  resources  to  hold  together  social 
unity,  notwithstanding  the  vast  expanse  of  the  earth's  surface 
which  our  population  has  traversed  and  possessed  ?    No.    Keep 
ing  pace  with  our  wants  in  that  regard,  the  rapid  locomotion 
of  steam  on  the  ocean,  and  on  our  rivers  and  lakes,  and  on  the 
iron  roads  ihat  bind  the  country  together,  and  the  instantane 
ous  electric  communication  of  thought,  which  tills  with  the 
same  facts,  and  with  the  same  news,  and  with  the  same  senti 
ments,  at  the  same  moment,  a  great,  enlightened,  and  intelligent 
people,  have  overcome  all  the  resistance  and  all  the  dangers 
which  might  be  attributed  to  natural  obstructions.     Even  now, 
while  this  trial  proceeds,  San  Francisco  and  New  York,  Boston 
and  Portland,  and  the  still  farther  East,  communicate  together 
as  by 
electric 


a  flash  of  lightning — indeed,  it  may  be  said,  making  an 
*ic  flash  farther  across  the  earth's  surface,  and  intelligible 


350  TRIAL    OF   THE    OFFICERS    AND   CREW 

too,  to  man,  tban  ever,  in  the  natural  phenomena  of  the  heavens, 
the  lightning  displayed  itself.  No — the  same  Author  of  all 
good,  to  whom  Pinckney  avowed  his  gratitude,  has  been  our 
friend  and  our  protector,  and  has  removed,  step  by  step,  every 
impediment  to  our  expansion  which  the  laws  of  nature  and  of 
space  had  been  supposed  to  interpose.  No,  no — neither  in  the  . 
patriotism  nor  in  the  wisdom  of  our  fathers  was  there  any  de 
fect  ;  nor  shall  we  find,  in  the  disposition  and  purposes  of  Di 
vine  Providence,  as  we  can  see  them,  any  excuse  or  any  aid 
for  the  destruction  of  this  magnificent  system  of  empire.  No — 
it  is  in  ourselves,  in  our  own  time  and  in  our  own  generation, 
in  our  own  failing  powers  and  failing  duties,  that  the  crash  and 
ruin  of  this  magnificent  fabric,  and  the  blasting  of  the  future 
hopes  of  mankind,  is  to  find  its  cause  and  its  execution. 

I  have  shown  you,  gentlemen,  how,  when  the  usurpations 
of  the  British  Parliament,  striking  at  the  vital  point  of 
the  independence  of  this  country,  had  raised  for  consideration 
and  determination,  by  a  brave  and  free  people,  the  question  of 
their  destiny,  our  fathers  dealt  with  it.  My  learned  friends,  in 
various  forms,  have  spoken  poetically,  logically  and  practically 
about  all  that  course  of  proceedings  that  has  been  going  on  in 
this  country,  as  finding  a  complete  parallelism,  support,  and 
justification  in  the  course  of  the  American  Eevolution  ;  and  a 
passage  in  the  Declaration  of  Independence  has  been  read  to 
you  as  calculated  to  show  that,  on  a  mere  theoretical  opinion 
of  the  right  of  a  people  to  govern  themselves,  any  portion  of 
that  people  are  at  liberty,  as  well  against  a  good  Government 
as  against  a  bad  one,  to  establish  a  bad  Government  as  well  as 
overthrow  a  bad  Government — have  the  right  to  do  as  they 
please,  and,  I  suppose,  to  force  all  the  rest  of  the  world  and 
all  the  rest  of  the  nation  to  just  such  a  fate  as  their  doing  as 
they  please  may  bring  with  it. 

Let  us  see  how  this  Declaration  of  Independence,  called 
by  the  great  forensic  orator,  Mr.  Choate,  "  a  passionate  and 
eloquent  manifesto,"  and  stigmatized  as  containing  "glittering 
generalities" — let  us  see,  I  say,  how  sober,  how  discreet,  how 
cautious  it  is  in  the  presentation  of  this  right,  even  of  revolution. 
I  read  what,  both  in  the  newspapers  and  in  political* discussions, 
as  well  as  before  you,  by  the  learned  counsel,  have  been  pre 
sented  as  the  doctrines  of  the  Declaration  of  Independence,  and 
then  I  add  to  it  the  qualifying  propositions,  and  the  practical, 
stern  requisitions,  which  that  instrument  appends  to  these  gen 
eral  views : 

"To  secure  these  rights,  Governments  are  instituted  among  men,  deriving 
their  just  powers  from  the  consent  of  the  governed;  that  whenever  any  form 
of  Government  becomes  destructive  of  these  ends,  it  is  the  right  of  the  people 
to  alter  or  abolish  it,  and  to  institute  new  Government,  laying  its  founda- 


OF  THE   SCHOONER   SAVANNAH.  351 

tion  on  such  principles,  and  organizing  its  powers  in  such  form,  as  to  them 
shall  seem  most  likely  to  effect  their  safety  and  happiness.  Prudence,  indeed, 
will  dictate,  that  Governments  long  established  should  not  be  changed  for 
light  and  transient  causes.  And,  accordingly,  all  experience  hath  shown,  that 
mankind  are  more  disposed  to  suffer,  while  evils  are  sufferable,  than  to  right 
themselves  by  abolishing  the  forms  to  which  they  are  accustomed.  But  when 
a  long  train  of  abuses  and  usurpations,  pursuing  invariably  the  same  object, 
evinces  a  design  to  reduce  them  under  absolute  despotism,  it  is  their  right,  it 
is  their  duty,  to  throw  off  such  Government,  and  to  provide  new  guards  for 
their  future  security.  Such  has  been  the  patient  sufferance  of  these  Colonies ; 
and  such  is  now  the  necessity  which  constrains  them  to  alter  their  former 
systems  of  Government.  The  history  of  the  present  King  of  Great  Britain  is 
a  history  of  repeated  injuries  and  usurpations,  all  having  in  direct  object  the 
establishment  of  an  absolute  tyranny  over  these  States.  To  prove  this,  let 
facts  be  submitted  to  a  candid  world." 

P£  And  it  then  proceeds  to  enumerate  the  facts,  in  the  eloquent 
language  of  the  Declaration,  made  familiar  to  us  all  by  its 
repeated  and  reverent  recitals  on  the  day  which  celebrates  its 
adoption.  There  is  not  anything  of  moonshine  about  any  one 
of  them.  There  is  not  anything  of  perhaps,  or  anticipation  of 
fear,  or  suspicion.  There  is  not  anything  of  this  or  that  news 
paper  malediction,  of  this  or  that  rhetorical  disquisition,  of 
this  or  that  theory,  or  of  this  or  that  opprobrium,  but  a  recital 
of  direct  governmental  acts  of  Great  Britain,  all  tending  to 
the  purpose  of  establishing  complete  despotism  over  this  coun 
try.  And,  then,  even  that  not  being  deemed  sufficient,  on  the 
part  of  our  great  ancestors,  to  justify  this  appeal  to  the  enlight 
ened  opinion  of  the  world,  and  to  the  God  who  directs  the  fate 
of  armies,  they  say: 

"  In  every  stage  of  these  oppressions,  we  have  petitioned  for  redress,  in 
the  most  humble  terms;  our  repeated  petitions  have  been  answered  only  by 
repeated  injury.  A  Prince  whose  character  is  thus  marked  by  every  act 
which  may  define  a  tyrant,  is  unfit  to  be  the  ruler  of  a  free  people. 

"Nor  have  we  been  wanting  in  attentions  to  our  British  brethren.  We 
have  warned  them,  from  time  to  time,  of  attempts  by  their  Legislature 
to  extend  an  unwarrantable  jurisdiction  over  us.  We  have  reminded  them 
of  the  circumstances  of  our  emigration  and  settlement  here.  We  have 
appealed  to  their  native  justice  and  magnanimity,  and  we  have  conjured  them, 
by  the  ties  of  our  common  kindred,  to  disavow  these  usurpations,  which 
would  inevitably  interrupt  our  connection  and  correspondence.  They,  too, 
have  been  deaf  to  the  voice  of  justice  and  of  consanguinity." 

Now,  gentlemen,  this  doctrine  of  revolution,  which  our 
lea  rn  d  friends  rely  upon,  appeals  to  our  own  sense  of  right 
and  duty.  It  rests  upon  facts,  and  upon  the  purpose,  as  in 
dicated  by  those  facts,  to  deprive  our  ancestors  of  the  rights 
of  Englishmen,  and  to  subject  them  to  the  power  of  a  Gov 
ernment  in  which  they  were  not  represented.  Now,  whence 
come  the  occasions  and  the  grievances  urged  before  you,  and 
of  what  kind  are  they?  My  learned  friend,  Mr.  Brady, 
has  given  you  a  distinct  enumeration,  under  nine  heads,  of 


352  TRIAL    OF   THE    OFFICERS    AND    CREW 

what  the  occasions  are,  and  what  the  grievances  are.  There 
is  not  one  of  them  that,  in  form  or  substance,  proceeded  from 
the  Federal  Government.  There  is  not  a  statute,  there  is 
not  a  proclamation,  there  is  not  an  action,  judicial,  executive, 
or  legislative,  on  the  part  of  the  Federal  Government,  that 
finds  a  place,  either  in  consummation  or  in  purpose,  in  this 
indictment  drawn  by  my  friend  Mr.  Brady  against  the  Gov 
ernment,  on  behalf  of  his  clients.  The  letter  of  South  Caro 
lina,  on  completing  the  revocation  of  her  adoption  of  the  Con 
stitution,  addressed  to  the  States,  dwells  upon  the  interest  of 
slavery  (as  does  my  learned  friend  Mr.  Brady,  in  all  his  propo 
sitions),  and  discloses  but  two  ideas — one,  that  when  any  body 
or  set  of  people  cease  to  be  a  majority  in  a  Government,  they 
have  a  right  to  leave  it ;  and  the  other,  that  State  action,  on 
the  part  of  some  of  the  Northern  States,  had  been  inconsistent 
with,  threatening  to,  or  opprobrious  of  the  institution  of  slavery 
in  the  Southern  States. 

Let  me  ask  your  attention  to  this  proposition  of  the  South 
ern  States,  and  this  catalogue  of  the  learned  counsel.  As 
it  is  only  the  interest  of  slavery,  social  and  political  (for  it  is 
an  interest,  lawfully  existing),  that  leads  to  the  destruction  of 
our  Government  and  of  tbeir  Government,  let  us  see  what 
there  is  in  the  actual  circumstances  of  this  interest,  as  being 
able,  under  the  forms  of  our  Constitution,  to  look  out  for 
itself,  as  well,  at  least,  as  any  other  interest  in  the  country, 
that  can  justify  them  in  finding  an  example  or  a  precedent  in 
the  appeal  of  our  fathers  to  arms  to  assert  their  rights  by  the 
strong  hand,  because  in  the  Government  of  England  they  had 
no  representation.  Did  our  fathers  say  that,  because  they  had 
not  a  majority  in  the  English  Parliament,  they  had  a  right  to 
rebel?  No!  They  said  they  had  not  a  share  or  vote  in  the 
Parliament.  That  was  their  proposition. 

I  now  invite  you  to  consider  this  fundamental  view  of 
the  right  and  power  of  Government,  and  the  right  and  freedom 
of  the  people, — to  wit,  that  every  citizen  is  entitled  to  be 
counted  and  considered  as  good  as  every,  other  citizen, — as  a 
natural  and  abstract  right — as  the  basis  of  our  Government, 
howrever  other  arrangements  may  have  adjusted  or  regulated 
that  simple  and  abstract  right.  Then,  let  us  see  whether  the  ar 
rangement  of  the  Federal  Government,  in  departing  from  that 
natural  right  of  one  man  to  be  as  good  as  another,  and  to  be 
counted  equal  in  the  representation  of  his  Government,  has  ope 
rated  to  the  prejudice  of  the  interest  of  slavery.  We  have  not 
heard  anything  in  this  country  of  any  other  interest  for  many  a 
long  year, — much  to  my  disgust  and  discontent.  There  are  other 
interests, — manufacturing  interests,  agricultural  interests,  com 
mercial  interests,  all  sorts  of  interests, — some  of  them  discordant, 


OF   THE   SCHOONER   SAVANNAH.  353 

if  you  please.  Let  us  see  whether  this  interest  of  slavery  has 
a  fair  cnance  to  be  heard,  and  enjoys  its  fair  share  of  political 
power  under  our  Government,  or  whether,  from  a  denial  to  it 
of  its  fair  share,  it  has  some  pretext  for  appealing  to 
force.  Why,  gentlemen,  take  the  fifteen  Slave  States,  which, 
under  the  census  of  1850,  had  six  millions  of  white  people — .that 
is,  of  citizens — and,  under  the  census  of  1860,  about  eight  mil 
lions,  and  compare  them  with  the  white  people  of  the  State  of 
New  York,  which,  under  the  census  of  1850,  had  three  millions, 
and,  under  the  census  of  1860,  something  like  four  millions. 

Now,  here  we  are, — they  as  good  as  we,  and  we  as  good 
as  they, — we  having  our  interests,  and  opinions,  and  feelings — 
they  their  opinions,  interests,  and  feelings, — and  let  us  see  how 
the  arrangement  of  representation,  in  every  part  of  our  Gov 
ernment,  is  distributed  between  these  interests.  Why,  with 
a  population  just  double  that  of  the  State  of  New  York,  the 
interest  of  slavery  has  thirty  Senators  to  vote  and  to  speak  for 
it,  and  the  people  of  New  York  have  two  Senators  to  vote  and 
to  speak  for  them.  In  the  House  of  Representatives  these  same 
Slave  States  have  ninety  Representatives  to  speak  and  to  vote 
for  them ;  and  the  people  of  the  State  of  New  York  have  thirty- 
three  to  vote  and  to  speak  for  them.  And,  in  the  Electoral 
College,  which  raises  to  the  chief  magistracy  the  citizen  who 
receives  the  constitutional  vote,  these  same  States  have  one 
hundred  and  twenty  electoral  votes,  and  the  State  of  New 
York  has  thirty-five.  Why,  the  three  coterminous  States — New 
York,  Pennsylvania,  and  Ohio — have,  under  either  census,  as 
great  or  a  greater  population  than  the  fifteen  Slave  States,  and 
they  have  but  six  Senators,  against  the  Slave  States'  thirty. 

Do  I  mention  this  in  complaint?  Not  in  the  least.  1  only 
mention  it  to  show  you  that  the  vote  and  the  voice  of  this  in 
terest  has  not  been  defrauded  in  the  artificial  distribution  of 
Federal  power.  And,  if  I  may  be  allowed  to  refer  to  the  other 
august  department  of  our  Federal  Government,  the  Supreme 
Court  of  the  United  States,  in  which  the  Presiding  Justice  has 
his  seat  as  one  of  the  members  of  that  Court,  you  will  see  how 
the  vast  population,  the  vast  interests  of  business,  commerce, 
and  what  not,  that  reside  in  the  Free  States,  as  compared 
with  the  lesser  population,  the  lesser  business,  and  the  lesser 
demand  for  the  authority  or  intervention  of  the  judiciary  in  the 
Slave  States,  have  been  represented  for  years,  by  the  distri 
bution  of  the  nine  Judges  of  that  Court,  so  that  trie  eighteen 
millions  of  white  people  who  compose  the  population  of  the 
Free  States  have  been  represented  (not  in  any  political  sense) 
by  four  of  these  Justices ;  and  the  rest  of  the  country,  the 
fifteen  Slave  States,  with  their  population  of  six  or  eight  mil 
lions,  have  been  represented  by  five.  Now,  of  this  I  do  not 
23 


354:  TRIAL   OF   THE   OFFICERS   AND   CREW 

complain.  It  is  law — it  is  government ;  and  no  injustice  has 
been  done  to  the  Constitution,  nor  has  it  been  violated  in  this 
arrangement.  But,  has  there  been  any  fraud  upon  the  interest 
of  slavery,  in  the  favor  the  Federal  Government  has  shown  in 
the  marking  out  of  the  Judicial  Districts,  and  in  the  apportion 
ment  of  the  Judges  to  the  different  regions  of  the  country,  and 
to  the  population  of  those  regions  ?  If  you  look  at  it  as  regards 
the  business  in  the  different  Circuits,  the  learned  Justice  who 
now  presides  here,  and  who  holds  his  place  for  the  Second 
Circuit,  including  our  State,  disposes  annually,  here  and  in  the 
other  Courts,  of  more  business  than,  I  may  perhaps  say,  all  the 
Circuits  that  are  made  up  from  the  Slave  States  And,  if  you 
look  at  it  as  regards  the  population,  there  was  one  Circuit — 
that  which  was  represented  by  the  learned  Mr.  Justice 
McLean,  lately  deceased — which  contained  within  itself  five 
millions  of  white,  free  population ;  while  one  other  Circuit, 
represented  by  another  learned  Justice,  lately  deceased — 
a  Circuit  composed  of  Mississippi  and  Arkansas — contained 
only  450,000,  at  the  time  of  the  completion  of  the  census  of 
1850.  Who  complains  of  this  ?  Do  we?  Never.  But,  when 
it  is  said  to  you  that  there  is  a  parallelism  between  the  right 
of  revolt,  because  of  lack  of  representation,  in  the  case  of  our 
people  and  the  Parliament  of  England,  and  the  case  of  these 
people  and  the  United  States,  or  any  of  the  forms  of  its  adminis 
tration  of  power,  remember  these  things.  I  produce  this  in 
the  simple  duty  of  forensic  reply  to  the  causes  put  forward  as 
a  justification  of  this  revolt — that  is  to  say  that,  the  Government 
oppressing  them,  or  the  Government  closed  against  them,  and 
they  excluded  from  it,  they  had  a  right  to  resort  to  the  revolu 
tion  of  force. 

You,  therefore,  must  adopt  the  proposition  of  South  Caro 
lina,  that,  when  any  interest  ceases  to  be  the  majority  in  a 
Government,  it  has  a  right  to  secede.  How  long  would  such  a 
Government  last?  Why,  there  never  was  any  interest  in  this 
country  which  imagined  that  it  had  a  majority.  Did  the  tariff 
interest  have  a  majority?  Did  the  grain  interest  have  a  majori 
ty  ?  Did  the  commercial  interest  have  a  majority  ?  Did  the 
States  of  the  West  have  a  majority?  Does  California  gold 
represent  itself  by  a  majority?  Why,  the  very  safety  of  such 
a  Government  as  this  is,  that  no  interest  shall  or  can  be  a 
majority ;  but  that  the  concurring,  consenting  wisdom  drawn 
out  of  these  conflicting  interests  shall  work  out  a  system  of 
law  which  will  conduce  to  the  general  interest. 

Now,  that  I  have  not  done  my  learned  friend,  Mr.  Brady, 
any  injustice  in  presenting  the  catalogue  of  grievances  (not  in 
his  own  view,  but  in  the  view  of  those  who  have  led  in  this 
rebellion),  let  us  see  what  they  are : 


OF   THE    SCHOONER    SAVANNAH.  355 

"  The  claim  to  abolish  slavery."  Is  there  any  statute  of  the 
United  States  anywhere  that  has  abolished  it?  Has  any  Act 
been  introduced  into  Congress  to  abolish  it  ?  Has  the  measure 
had  a  vote  ? 

"  Stoppage  of  the  inter-state  slave-trade."  I  may  say  the 
same  thing  of  that. 

"  No  more  slavery  in  the  Territories."  Where  is  the  Act 
of  Congress,  where  is  the  movement  of  the  Federal  Govern 
ment,  where  the  decision  of  the  Supreme  Court,  that  holds  that 
slavery  cannot  go  into  a  territory  ?  Why,  so  far  as  acts  go, 
everything  has  gone  in  the  way  of  recognizing  the  confirmation 
of  the  right — the  repeal  of  the  Missouri  Compromise  by  Con 
gress,  and  the  decision  of  the  Federal  Court,  if  it  go  to  that 
extent,  as  is  claimed,  in  the  case  of  Dred  Scott. 

"Nullification  of  the  fugitive-slave  law."  Who  passed  the 
fugitive-slave  law  ?  Congress.  Who  have  enforced  it  ?  The 
Federal  power,  by  arms,  in  the  city  of  Boston.  Who  have 
enjoined  its  observation,  to  Grand  Juries  and  to  Juries  ?  The 
Justices  of  the  Supreme  Court  of  the  United  States,  in  their 
Circuits.  Who  have  held  it  to  be  constitutional  ?  The  Supreme 
Court  of  the  United  States,  and  the  subordinate  Courts  of  the 
United  States,  and  every  State  Court  that  has  passed  upon  the 
subject,  except  it  be  the  State  Court  of  the  State  of  Wisconsin, 
if  1  am  correctly  advised. 

"Under-ground  railroads,  supported  by  the  Government, 
and  paid  by  them."  Are  they  ?  Not  in  the  least. 

"  The  case  of  the  Creole" — where,  they  say,  no  protection 
was  given  to  slaves  on  the  high  seas.  Is  there  any  judicial 
interpretation  to  that  effect  ?  Nothing  but  the  refusal  of  Con 
gress  to  pass  a  bill,  under  some  circumstances  of  this  or  that 
nature,  presented  for  its  consideration;  and,  because  it  has 
refused,  it  is  alleged  there  is  the  assertion  of  some  principle  that 
should  charge  upon  this  Government  the  inflamed  and  particu 
lar  views  generally  maintained  on  slavery  by  Garrison,  Phillips, 
and  Theodore  Parker. 

The  other  enormities  they  clothe  in  general  phrase,  and 
do  not  particularly  specify,  except  one  particular  subject — 
what  is  known  as  the  "  John  Brown  raid" — in  regard  to  which, 
as  it  has  been  introduced,  I  shall  have  occasion  to  say  some 
thing  in  another  connection,  and,  therefore,  I  will  not  comment 
upon  it  now. 

I  find,  however,  I  have  omitted  the  last — Mr.  Lincoln's  doc 
trine,  that  it  is  impossible,  theoretically,  for  slave  and  free 
States  to  co-exist.  For  many  years  that  was  considered  to  be 
Mr.  Seward's  doctrine,  but,  when  Mr.  Lincoln  became  a  candi 
date  for  the  Presidency,  it  was  charged  on  him,  being  sup 
ported  by  some  brief  extracts  from  former  speeches  made  by 


356  TRIAL   OF   TUB   OFFICERS   AND   CREW 

him  in  canvassing  his  State.  I  cannot  discuss  all  these  matters. 
They  are  beneath  the  gravity  of  State  necessity,  and  of  the 
question  of  the  right  of  revolution.  They  are  the  opinions,  the 
sentiments,  the  rhetoric,  the  folly,  the  local  rage  and  madness, 
if  you  please,  in  some  instances,  of  particular  inflammations, 
either  of  sentiment  or  of  action,  rising  in  the  bosom  of  so  vast, 
so  impetuous  a  community  as  ours.  But,  suppose  the  tariff 
States,  suppose  the  grain  States,  were  to  attempt  to  topple 
down  the  Government,  and  maintain  a  separate  and  sectional 
independence  upon  their  interests,  of  only  the  degree  and 
gravity,  and  resting  in  the  proof  of  facts  like  these  ?  Now,  for 
tne  purpose  of  the  argument,  let  us  suppose  all  these  things  to 
be  wrong.  My  learned  friends,  who  have  made  so  great  and  so 
passionate  an  appeal  that  individual  lives  should  not  be 
sacrificed  for  opinion,  certainly  might  listen  to  a  proposition 
that  the  life  of  a  great  nation  should  not  be  destroyed  on 
these  questions  of  the  opinions  of  individual  citizens..  No — you 
never  can  put  either  the  fate  of  a  nation  that  it  must  submit,  or 
the  right  of  malcontents  to  assert  their  power  for  its  overthrow, 
upon  any  such  proposition,  of  the  ill- working,  or  of  the  irrita 
tions  that  arise,  and  do  not  come  up  to  the  effect  of  oppres 
sion,  in  the  actual,  the  formal,  and  the  persistent  movement 
of  Government.  Never  for  an  instant.  For  that  would  be, 
what  Mr.  Stephens  has  so  ably  presented  the  folly  of  doing,  to 
require  that  a  great  Government,  counting  in  its  population 
thirty  millions  of  men,  should  not  only  be  perfect  in  its  design 
and  general  form  and  working,  but  that  it  should  secure  perfect 
action,  perfect  opinions,  perfect  spirit  and  sentiments  from  every 
one  of  its  people — and  that,  made  out  of  mere  imperfect  indi 
viduals  who  have  nothing  but  poor  human  nature  for  their 
possession,  it  should  suddenly  become  so  transformed,  as  to  be 
without  a  flaw,  not  only  in  its  administration,  but  in  the  con 
duct  of  every  body  under  it. 

Now,  my  learned  friends,  pressed  by  this  difficulty  as  to  the 
sufficiency  of  the  causes,  are  driven  finally  to  this — that  there 
is  a  right  of  revolution  when  anybody  thinks  there  is  a  right  of 
revolution,  and  that  that  is  the  doctrine  upon  which  our  Govern 
ment  rests,  and  upon  which  the  grave,  serious  action  of  our 
forefathers  proceeded.  And  it  comes  down  to  the  proposition 
of  my  learned  friend,  Mr.  Brady,  that  it  all  comes  to  the  same 
thing,  the  power  and  the  Tight.  All  the  argument,  most 
unquestionably,  comes  to  that.  But  do  morals,  does  reason, 
does  common  sense  recognize  that,  because  power  and  right 
may  result  in  the  same  consequences,  therefore  there  is  no  dif 
ference  in  their  quality,  or  in  their  support,  or  in  their  theory  ? 
If  I  am  slain  by  the  sword  of  justice  for  my  crime,  or  by  the 
dagger  of  an  assassin  for  my  virtue,  I  am  dead,  under  the 


OF   THE    SCHOONER   SAVANNAH.  357 

stroke  of  either.  But  is  one  as  right  as  the  other  ?  An  op 
pressive  Government  may  be  overthrown  by  the  uprising  of 
the  oppressed,  and  Lord  Camden's  maxim  may  be  adhered  to, 
that  "  when  oppression  begins,  resistance  becomes  a  right ;"  but 
a  Government,  beneficent  and  free,  may  be  attacked,  may  be 
overthrown  by  tyranny,  by  enemies,  by  mere  power.  The 
Colonies  may  be  severed  from  Great  Britain,  on  the  principle 
of  the  right  of  the  people  asserting  itself  against  the  tyranny 
of  the  parent  Government;  and  Poland  may  be  dismembered 
by  the  interested  tyranny  of  Russia  and  Austria ;  and  each 
is  a  revolution  and  destruction  of  the  Government,  and  its 
displacement  by  another — a  dismemberment  of  the  community, 
aijd  the  establishment  of  a  new  one  under  another  Govern 
ment.  But,  do  my  learned  friends  say  that  they  equally  come 
to  the  test  of  power  as  establishing  the  right  ?  Will  my 
learned  friend  plant  himself,  in  justification  of  this  dismem 
berment  of  a  great,  tree,  and  prosperous  people,  upon  the 
example  of  the  dismemberment  of  Poland,  by  the  introduc 
tion  of  such  influences  within,  and  by  the  co-operation  of 
such  influences  without,  as  secured  that  result?  Certainly  not. 
And  yet,  if  he  puts  it  upon  the  right  and  the  power,  as  coming 
to  the  same  thing,  it  certainly  cannot  make  any  difference 
whether  the  power  proceeds  from  within  or  from  without. 
There  is  no  such  right.  Both  the  public  action  of  communities 
and  the  private  action  of  individuals  must  be  tried,  if  there  is 
any  trial,  any  scrutiny,  any  judgment,  any  determination,  upon 
some  principles  that  are  deeper  than  the  question  of  counting 
bayonets.  When  we  are  referred  to  the  case  of  Victor  Eman- 
nuel  overthrowing  the  throne  of  the  King  of  Naples,  and 
thus  securing  the  unity  of  the  Italian  people  under  a  benign 
Government,  are  we  to  be  told  that  the  same  principle  and  the 
same  proposition  would  have  secured  acceptance  before  the 
forum  of  civilization,  and  in  the  eye  of  morality,  to  a  success 
ful  effort  of  the  tyrant  of  Naples  to  overthrow  the  throne  of 
Victor  Emannuel,  and  include  the  whole  of  Italy  under  his, 
King  Bomba's,  tyranny?  No  one.  The  quality  of  the  act,  the 
reason,  the  support,  and  the  method  of  it,  are  traits  that  im 
press  their  character  on  those  great  public  and  national  trans 
actions  as  well  as  upon  any  other. 

There  is  but  one  proposition,  in  reason  and  morality, 
beyond  those  I  have  stated,  which  is  pressed  for  the  extri 
cation  and  absolution  of  these  prisoners  from  the  guilt  that  the 
law,  as  we  say,  impresses  upon  their  action  and  visits  with  its 
punishment.  It  is  said  that,  however  little,  as  matter  of  law, 
these  various  rights  and  protections  may  come  to,  good  faith, 
or  sincere,  conscientious  conviction  on  the  part  of  these  men  as 


358  TRIAL    OF   THE    OFFICERS    AND   CREW 

to  what  they  have  done,  should  protect  them  against  the  public 
justice. 

Now,  we  have  heard  a  great  deal  of  the  assertion  and  of  the 
execration  of  the  doctrine  of  the  "  higher  law,"  in  the  discus 
sions  of  legislation,  and  in  the  discussions  before  the  popular 
rnind  ;  but  I  never  yet  have  heard  good  faith  or  sincere  opinion 
pressed,  in  a  Court  of  Justice,  as  a  bar  to  the  penalty  which 
the  law  has  soberly  affixed,  in  the  discreet  and  deliberate 
action  of  the  Legislature.  And  here  my  learned  friend  fur 
nishes  me,  by  his  reference  to  the  grave  instance  of  injury  to 
the  property,  and  the  security,  and  the  authority  of  the  State 
of  Virginia,  which  he  has  spoken  of  as  "  John  Brown's  raid," 
with  a  ready  instance,  in  which  these  great  principles  of  public 
justice,  the  authority  of  Government,  and  the  sanctions  of 
human  law  were  met,  in  the  circumstances  of  the  transaction, 
by  a  complete,  and  thorough,  and  remarkable  reliance,  for  the 
motive,  the  support,  the  stimulus,  the  solace,  against  all  the 
penalties  which  the  law  had  decreed  for  such  a  crime,  on  this 
interior  authority  of  conscience,  and  this  supremacy  of  personal 
duty,  according  to  the  convictions  of  him  who  acts.  The  great 
State  of  Yirginia  administered  its  justice,  and  it  found,  as  its 
principal  victim,  this  most  remarkable  man,  in  regard  to  whom 
it  was  utterly  impossible  to  impute  anything  like  present  or 
future,  near  or  remote,  personal  interest  or  object  of  any  kind 
— a  man  in  regard  to  whom  Governor  Wise,  of  Virginia,  said, 
in  the  very  presence  of  the  transaction  of  his  trial,  that  he  was 
the  bravest,  the  sincerest,  the  truthfulest  man  that  he  ever 
knew.  And  now,  let  us  look  at  the  question  in  the  light  in 
which  our  learned  friend  presents  it — that  John  Brown,  as 
matter  of  theoretical  opinion  of  what  he  had  a  right  to  do, 
under  the  Constitution  and  laws  of  his  country,  was  justified, 
upon  the  pure  basis  of  conscientious  duty  to  God — and  let  us 
see  whether,  before  the  tribunals  of  Yirginia,  as  matter  of  fact, 
or  matter  of  law,  or  right,  or  duty,  any  recognition  was  given 
to  it.  No.  John  Brown  was.  not  hung  for  his  theoretical 
heresies,  nor  was  he  hung  for  the  hallucinations  of  his  judg 
ment  and  the  aberration  of  his  wrong  moral  sense,  if  you  so 
call  it,  instead  of  the  interior  light  of  conscience,  as  he  regarded 
it.  He  was  hung  for  attacking  the  sovereignty,  the  safety,  the 
citizens,  the  property,  and  the  people  of  Yirginia.  And, 
when  my  learned  friend  talks  about  this  question  of  hanging 
for  political,  moral,  or  social  heresy,  and  that  you  cannot 
thus  coerce  the  moral  power  of  the  mind,  he  vainly  seeks  to 
beguile  your  judgment.  When  Ravaillac  takes  the  life  of 
good  King  Henry,  of  France,  is  it  a  justification  that,  in  the 
interests  of  his  faith,  holy  to  him — of  the  religion  he  professed 
—he  felt  impelled  thus  to  take  the  life  of  the  monarch  ?  When 


OF   THE    SCHOONER    SAVANNAH.  359 

the  assassin  takes,  at  the  door  of  the  House  of  Commons,  the 
life  of  the  Prime  Minister,  Mr.  Percival,  "because  he  thinks 
that  the  course  of  measures  his  administration  proposes  to 
carry  out  is  dangerous  to  the  country,  and  falls  a  victim  to 
violated  laws,  I  ask,  in  the  name  of  common  sense  and  com 
mon  fairness — are  these  executions  to  be  called  hanging  for  po 
litical  or  religious  heresies?  No.  And  shall  it  ever  be  said 
that  sincere  convictions  on  these  theories  of  secession  and  of 
revolution  are  entitled  to  more  respect  than  sincere  convictions 
and  opinions  on  the  subject  of  human  rights?  Shall  it  be  said 
that  faith  in  Jefferson  Davis  is  a  greater  protection  from  the 
penalty  of  the  law  than  faith  in  God  was  to  John  Brown  or 
Francis  Ravaillac? 

But,  gentlemen,  it  was  said  that  certain  isolated  acts  of 
some  military  or  civil  authority  of  the  United  States,  or  some 
promulgation  of  orders,  or  affirmation  of  measures  by  the  Gov 
ernment,  had  recognized  the  belligerent  right,  or  the  right  to 
be  considered  as  a  power  fighting  for  independence,  of  this 
portion  of  our  countrymen.  The  flags  of  truce,  and  the  capit 
ulation  at  Hatteras  Inlet,  and  the  announcement  that  we  would 
not  invade  Virginia,  but  would  protect  the  Capital,  are  claimed 
as  having  recognized  this  point.  Now,  gentlemen,  this  at 
tempts  either  too  much  or  too  little.  Is  it  gravely  to  be  said 
that,  when  the  Government  is  pressing  its  whole  power  for  the 
restoration  of  peace  and  for  the  suppression  of  this  rebellion,  it 
is  recognizing  a  right  to  rebel,  or  has  liberated  from  the  penal 
ties  of  the  criminal  law  such  actors  in  it  as  it  may  choose  to 
bring  to  punishment?  Is  it  to  be  claimed  here  that,  by  reason 
of  these  proceedings,  the  Government  has  barred  itself  from 
taking  such  other  proceedings,  under  the  same  circumstances, 
as  it  may  think  fit  ?  Why,  certainly  not.  The  Government 
may,  at  any  time,  refuse  to  continue  this  amenity  of  flags  of 
truce.  It  can,  the  next  time,  refuse  to  receive  a  capitulation 
as  "  prisoners  of  war,"  and  may,  in  any  future  action — as,  in 
deed,  in  its  active  measures  for  the  suppression  of  the  rebellion 
it  is  doing — affirm  its  control  over  every  part  of  the  revolted 
regions  of  this  country.  There  is  nothing  in  this  fact  that 
determines  anything  for  the  occasion,  but  the  occasion  itself. 
The  idea  that  the  commander  of  an  expedition  to  Hatteras 
Inlet  has  it  in  his  power  to  commit  the  Government,  so  as  to 
empty  the  prisons,  to  overthrow  the  Courts,  and  to  discharge 
Jurors  from  their  duty,  and  criminals  from  the  penalties  of  their 
crimes,  is  absurd. 

I  shall  now  advert  to  the  opinion  of  Judge  Cadwalader,  on 
the  trial  in  Philadelphia,  and  to  the  propositions  of  the  counsel 
there,  on  behalf  of  the  prisoners,  as  containing  and  including 
the  general  views  and  points  urged,  in  one  form  or  another, 


360  TRIAL    OF   THE    OFFICERS    AND    CREW 

and  with  greater  prolixity,  at  least,  if  not  earnestness  and  force, 
by  the  learned  counsel  who  defend  the  prisoners  here.  It  will 
be  found  that  those  points  cover  all  these  considerations : 

First.  If  the  Confederate  States  of  America  is  a  Government,  either  de 
facto  or  de  jure,  it  had  a  right  to  issue  letters  of  marque  and  reprisal ;  and  if 
issued  before  the  commission  of  the  alleged  offence,  that  the  defendant,  act 
ing  under  the  authority  of  such  letters,  would  be  a  privateer,  and  not  a  pirate, 
and,  as  such,  is  entitled  to  be  acquitted. 

Second.  That  if,  at  the  time  of  the  alleged  offence,  the  Southern  Confede 
racy,  by  actual  occupation,  as  well  as  acts  of  Government,  had  so  far  acquired 
the  mastery  or  control  of  the  particular  territory  within  its  limits  as  to 
enable  it  to  exercise  authority  over,  and  to  demand  and  exact  allegiance  from, 
its  residents,  that  then  a  resident  of  such  Confederacy  owes  allegiance  to  the 
Government  under  which  he  lives,  or,  at  least,  that  by  rendering  allegiance 
to  such  Government,  whether  on  sea  or  land,  he  did  not  thereby  become  a 
traitor  to  the  Government  of  the  United  States. 

Third.  That  if,  at  the  time  of  the  alleged  offence  and  the  issuing  of  the 
letters  of  marque  and  reprisal  upon  which  the  defendant  acted,  the  Courts 
of  the  United  States  were  so  suspended  or  closed  in  the  Southern  Confede 
racy,  as  to  be  no  longer  able  to  administer  justice  and  enforce  the  law  in 
such  Confederacy,  that  the  defendant  thereby  became  so  far  absolved  from 
his  allegiance  to  the  United  States  as  to  enable  him  to  take  up  arms  for,  and 
to  enter  the  service  of,  the  Southern  Confederacy,  either  on  land  or  sea,  with 
out  becoming  a  traitor  to  the  Government  of  the  United  States. 

fourth.  That  if,  at  the  time  of  the  alleged  offence  and  his  entering  into 
the  service  of  the  Southern  Confederacy,  the  defendant  was  so  situated  as  to 
be  unable  to  obtain  either  civil  or  military  protection  from  the  United  States, 
whilst  at  the  same  time  he  was  compelled  to  render  either  military  or  naval 
service  to  the  Southern  Confederacy,  or  to  leave  the  country,  and,  in  this 
event,  to  have  his  property  sequestrated  or  confiscated  by  the  laws  of  the 
said  Confederacy,  that  such  a  state  of  things,  if  they  existed,  would  amount 
in  law  to  such  duress  as  entitles  the  defendant  here  to  an  acquittal. 

Fifth.  That  this  Court  has  no  jurisdiction  of  the  case,  because  the  pris 
oner,  after  his  apprehension  on  the  high  seas,  was  first  brought  into  another 
District,  and  ought  to  have  been  there  tried. 

And  now,  gentlemen,  even  a  more  remote,  unconnected 
topic,  has  been  introduced  into  this  examination,  and  discussed 
and  pursued  with  a  good  deal  of  force  and  feeling,  by  my  learned 
friend,  Mr.  Brady ;  and  that  is,  what  this  war  is  for,  and  what  is 
expected  to  be  accomplished  by  it.  Well,  gentlemen,  is  your 
verdict  to  depend  upon  any  question  of  that  kind  ?  Is  it  to 
depend  either  upon  the  purpose  of  the  Government  in  waging 
the  war,  or  upon  its  success  in  that  purpose  ?  If  so,  the  trial 
had  been  better  postponed  to  the  end  of  the  war,  and  then  you 
will  find  your  verdict  in  the  result.  What  is  the  meaning  of 
this  ?  Let  those  who  began  the  war  say  what  the  war  is  for. 
Is  it  to  overthrow  this  Government  and  to  dismember  its 
territory  ?  Is  it  to  acquire  dominion  over  as  large  a  portion  of 
what  constitutes  the  possessions  of  the  American  people,  and 
over  as  large  a  share  of  its  population,  as  the  policy  or  the  mili 
tary  power  of  the  interest  that  establishes  for  itself  an  independ- 


OF   THE    SCHOONER    SAVANNAH.  361 

ent  Government,  for  its  own  protection,  can  accomplish?  Who 
are  seeking  to  subjugate,  and  who  is  seeking  to  protect?  No 
subjugation  is  attempted  or  desired,  in  respect  of  the  people  of 
these  revolting  States,  except  that  subjugation  which  they 
themselves  made  for  themselves  when  they  adopted  the  Consti 
tution  of  the  United  States,  and  thanked  God,  with  Charles 
Cotesworth  Pinckney,  that  his  blessing  permitted  them  to  do 
so, — and,  up  to  this  time,  with  Alexander  Stephens,  have  found 
it  to  be  a  Government  that  can  only  be  likened,  on  this  terres 
trial  sphere,  to  the  Eden  and  Paradise  of  the  nations  of  men. 
What  is  the  interest  that  is  seeking  to  wrest  from  the  authority 
of  that  benign  Government  portions  of  its  territory  and  author 
ity,  but  the  social  and  political  interest  of  slavery,  about  which 
I  make  no  other  reproach  or  question  than  this — that  it  has 
purposes,  and  objects,  and  principles  which  do  not  consult  the 
general  or  equal  interests  of  the  population  of  these  revolting 
States  themselves,  nor  contemplate  a  form  of  Government  that 
any  Charles  Cotesworth  Pinckney,  now,  or  any  Alexander 
Stephens,  hereafter,  can  thank  God  for  having  been  permitted  to 
establish ;  and  that,  as  Mr.  Stephens  has  said,  instead  of  becom 
ing  gods,  by  bursting  from  the  restraints  of  this  Eden,  they  will 
discover  their  own  nakedness,  and,  instead  of  finding  peace  and 
prosperity,  they  will  come  to  cutting  their  own  throats. 

Now,  what  is  the  duty  of  a  Government  that  finds  this 
assault  made  by  the  hands  of  terror  and  of  force  against  the 
judgment  and  wishes  of  the  discreet,  sober,  and  temperate,  at 
least,  to  those  to  whom  it  owes  protection,  as  they  owe  alle 
giance  to  it?  What,  but  to  carry  on,  by  the  force  of  the  Gov 
ernment,  the  actual  suppression  of  the  rebellion,  so  that  arms 
may  be  laid  down,  peace  may  exist,  and  the  law  and  the  Con 
stitution  be  reinstated,  and  the  great  debate  of  opinion  be 
restored,  that  has  been  interrupted  by  this  vehement  recourse 
to  arms?  What,  but  to  see  to  it  that,  instead  of  the  conse 
quences  of  this  revolt  being  an  expulsion,  from  this  Paradise 
of  free  Government,  of  these  people  whom  we  ought  to  keep 
within  it,  it  shall  end  in  the  expulsion  of  that  tempting  ser 
pent — be  it  secession  or  be  it  slavery — that  would  drive  them 
out  of  it.  Government  has  duties,  gentlemen,  as  well  as  rights. 
If  our  lives  and  our  property  are  subject  to  its  demands  under 
the  penal  laws,  or  for  its  protection  and  enforcement  as  an 
authority  in  the  world,  it  carries  to  every  citizen,  on  the  farthest 
sea,  in  the  humblest  schooner,  and  to  the  great  population  of 
these  Southern  States  in  their  masses  at  home,  that  firm  pro 
tection  which  shall  secure  him  against  the  wicked  and  the  will 
ful  assaults,  whether  it  be  of  a  pirate  on  a  distant  sea,  or  of  an 
ambitious  and  violent  tyranny  upon  land.  When  this  state  of 
peace  and  repose  is  accomplishecLby  Conventions,  by  petitions. 


362  TRIAL   OF  THE   OFFICERS   AND   CKEW 

by  representations  against  Federal  laws,  Federal  oppressions,  or 
Federal  principles  of  government,  the  right  of  the  people  to 
be  relieved  from  oppression  is  presented ;  and  then  may  the 
spirit  and  the  action  of  our  fathers  be  invoked,  and  their  con 
demnation  of  the  British  Parliament  come  in  play,  if  we  do  not 
do  what  is  right  and  just  in  liberating  an  oppressed  people. 
But  I  need  not  say  to  you  that  the  whole  active  energies  of 
this  system  of  terror  and  offeree  in  the  Southern  States  have 
been  directed  to  make  impossible  precisely  the  same  debate, 
the  same  discussion,  the  same  appeal,  and  the  same  just  and 
equal  attention  to  the  appeal.  And  you  will  find  this  avowed 
by  many  of  their  speakers  and  by  many  of  their  writers — as, 
when  Mr.  Toombs  interrupts  Mr.  Stephens  in  the  speech  I  have 
quoted  from,  when  urging  that  the  people  of  Georgia  should  be 
consulted,  by  saying:  "  lam  afraid  of  Conventions  and  afraid 
of  the  people  ;  I  do  not  want  to  hear  from  the  cross-roads  and 
the  groceries,"  which  are  the  opportunities  of  public  discussion 
and  influence,  it  appears,  in  the  State  of  Georgia.  That  is 
exactly  what  they  did  not  want  to  hear  from ;  and  their  rash 
withdrawal  of  this  great  question  from  such  honest,  sensible 
consideration,  will  finally  bring  them  to  a  point  that  the  people, 
interested  in  the  subject,  will  take  it  by  force;  and  then,  be 
sides  their  own  nakedness,  which  they  have  now  discovered, 
the  second  prophecy  of  Mr.  Stephens,  that  they  will  cut  their 
own  throats,  will  come  about ;  and  nothing  but  the  powerful 
yet  temperate,  the  firm  yet  benign,  authority  of  this  Govern 
ment,  compelling  peace  upon  these  agitations,  will  save  those 
communities  from  social  destruction  and  from  internecine  strife 
at  home. 

Now,  having  such  an  object,  can  it  be  accomplished  ? 
It  cannot,  unless  you  try ;  and  it  cannot,  if  every  soldier  who 
goes  into  the  field  concludes  that  he  will  not  fire  off  his  gun,  for 
it  is  uncertain  whether  it  will  end  the  war ;  or  if,  on  any  post 
of  duty  that  is  devolved  upon  citizens  in  private  life,  we  desert 
our  Government,  and  our  full  duty  to  the  Government.  But 
that  it  can  be  done,  and  that  it  will  be  done,  and  that  all  this 
talk  and  folly  about  conquering  eight  millions  of  people  will 
result  in  nothing,  I  find  no  room  to  doubt.  In  the  first  place, 
where  are  your  eight  millions  ?  Why,  there  are  the  fifteen 
Slave  States,  and  four  of  them — Maryland,  Delaware,  Ken 
tucky,  and  Missouri — are  not  yet  within  the  Confederacy.  So 
we  will  subtract  three  millions,  at  least,  for  that  part  of  the 
concern.  Then  there  are  five  millions  to  be  conquered  ;  and 
how  are  they  to  be  conquered  ?  Why,  not  by  destruction,  not 
by  slaughter,  not  by  chains  and  manacles ;  but  by  the  impres 
sion  of  the  power  of  the  Government,  showing  that  the  strug 
gle  is  vain,  that  the  appeal  to  arms  was  an  error  and  a  crime, 


OF   THE   SCHOONER   SAVANNAH.  363 

and  that,  in  the  region  of  debate  and  opinion,  and  in  equal 
representation  in  the  Government  itself,  is  the  remedy  for  all 
grievances  and  evils.  Be  sure  that,  whatever  may  be  said  or 
thought  of  this  question  of  war,  these  people  can  be,  not  sub 
jugated,  but  compelled  to  entertain  those  inquiries  by  peaceful 
means ;  and  I  am  happy  to  be  able  to  say  that  the  feeble  hopes 
and  despairing  views  which  my  learned  friend,  Mr.  Brady,  has 
thought  it  his  duty  to  express  before  you,  as  to  the  hopelessness 
of  any  useful  result  to  these  hostilities,  is  not  shared  by  one 
whom  my  friend,  in  the  eloquent  climax  to  an  oration,  placed 
before  us  as  "  starting,  in  a  red  shirt,  to  secure  the  liberties  of 
Italy."  I  read  his  letter  : 

"  CAPRERA,  Sept.  10. 

"Dear  Sir:  I  saw  Mr.  Sandford,  and  regret  to  be  obliged  to  announce  to 
you  that  I  shall  not  be  able  to  go  to  the  United  States  at  present.  I  do  not 
doubt  of  the  triumph  of  the  cause  of  the  Union,  and  that  shortly  ;  but,  if  the 
war  should  unfortunately  continue  in  your  beautiful  country,  I  shall  over 
come  the  obstacles  which  detain  me  and  hasten  to  the  defence  of  a  people 
who  are  dear  to  me. 

"  G.   GARIBALDI." 

Garibaldi  has  had  some  experience,  and  knows  the  dif 
ference  between  efforts  to  make  a  people  free,  and  the  warlike 
and  apparently  successful  efforts  of  tyranny ;  and  he  knows 
that  a  failure,  even  temporary,  does  not  necessarily  secure  to 
force,  and  fraud,  and  violence  a  permanent  success.  He  knows 
the  difference  between  restoring  a  misguided  people  to  a  free 
Government,  and  putting  down  the  efforts  of  a  people  to  get  up 
a  free  Government.  He  knows  those  are  two  different  things  ; 
and,  if  the  war  be  not  shortly  ended,  as  he  thinks  it  will  be, 
then  he  deems  it  right  for  him,  fresh  from  the  glories  of  secur 
ing  the  liberties  of  Italy,  to  assist  in  maintaining — what? 
Despotism  ?  No  !  the  liberties  of  America. 

One  of  the  learned  counsel,  who  addressed  you  in  a  strain 
of  very  effective  and  persuasive  eloquence,  charmed  us  all  by 
the  grace  of  his  allusion  to  'a  passage  in  classical  history,  and 
recalled  your  attention  to  the  fact  that,  when  the  States  of 
Greece  which  had  warred  against  Athens,  anticipating  her 
downfall  beneath  the  prowess  of  their  arms,  met  to  determine 
her  fate,  and  when  vindictive  Thebes  and  envious  Corinth 
counseled  her  destruction,  the  genius  of  the  Athenian  Sopho 
cles,  by  the  recital  of  the  chorus  of  the  Electra,  disarmed  this 
cruel  purpose,  by  reviving  the  early  glories  of  united  Greece. 
And  the  counsel  asked  that  no  voice  should  be  given  to  punish 
harshly  these  revolted  States,  if  they  should  be  conquered. 

The  voice  of  Sophocles  in  the  chorus  of  the  Electra,  and 
those  glorious  memories  of  the  early  union,  were  produced  to 
bring  back  into  the  circle  of  the  old  confederation  the  erring  and 


364  TRIAL   OF   THE   OFFICERS    AND    CREW 

rebellious  Attica.  So,  too,  what  shall  we  find  in  the  memories 
of  the  Revolution,  or  in  the  eloquence  with  which  we  have 
been  taught  to  revere  them,  that  will  not  urge  us  all,  by  every 
duty  to  the  past,  to  the  present,  and  to  the  future,  to  do  what 
we  can,  whenever  a  duty  is  reposed  in  us,  to  sustain  the  Gov 
ernment  in  its  rightful  assertion  of  authority  and  in  the  main 
tenance  of  its  power?  Let  me  ask  your  attention  to  what  has 
been  said  by  the  genius  of  Webster  on  so  great  a  theme  as 
the  memory  of  Washington,  bearing  directly  on  all  these  ques 
tions  of  union,  of  glory,  of  hope,  and  of  duty,  which  are  in 
volved  in  this  inquiry.  See  whether,  from  the  views  thus 
invoked,  there  will  not  follow  the  same  influence  as  from  the 
chorus  of  the  Electra,  for  the  preservation,  the  protection,  the 
restoration  of  every  portion  of  what  once  was,  and  now  is,  and, 
let  us  hope,  ever  shall  be,  our  common  country. 

On  the  occasion  of  the  centennial  anniversary  of  the  birth 
day  of  Washington,  at  the  national  Capital,  in  1832,  Mr.  Web 
ster,  by  the  invitation  of  men  in  public  station  as  well  as  of 
the  citizens  of  the  place,  delivered  an  oration,  about  which  I 
believe  the  common  judgment  of  his  countrymen  does  not 
differ  from  what  is  known  to  have  been  his  own  idea,  that  it 
was  the  best  presentation  of  his  views  and  feelings  which,  in 
the  long  career  of  his  rhetorical  triumphs,  he  had  had  the 
opportunity  to  make. 

No  man  ever  thought  or  spoke  of  the  character  of  Wash 
ington,  and  of  the  great  part  in  human  affairs  which  he  played, 
without  knowing  and  feeling  that  the  crowning  glory  of 
all  his  labors  in  the  field  and  in  the  council,  and  the  perpetual 
monument  to  his  fame,  if  his  fame  shall  be  perpetual,  would 
be  found  in  the  establishment  of  the  American  Union  under 
the  American  Constitution.  All  the  prowess  of  the  war,  all 
the  spirit  of  the  Revolution,  all  the  fortitude  of  the  effort, 
all  the  self-denial  of  the  sacrifice  of  that  period,  were  for 
nothing,  and  worse  thaiT  nothing,  if  the  result  and  consum 
mation  of  the  whole  were  to  be  but  a  Government  that  con 
tained  within  itself  the  seeds  of  its  own  destruction,  and  existed 
only  at  the  caprice  and  whim  of  whatever  part  of  the  people 
should  choose  to  deny  its  rightfulness  or  seek  to  overthrow 
its  authority.  In  pressing  that  view,  Mr.  Webster  thus  at 
tracts  the  attention  of  his  countrymen  to  the  great  achieve 
ment  in  human  affairs  which  the  establishment  of  this  Gov 
ernment  has  proved  to  be,  and  thus  illustrates  the  character  of 
Washington : 

11  It  was  the  extraordinary  fortune  of  Washington  that,  having  been  in 
trusted,  in  revolutionary  times,  with  the  supreme  military  command,  and 
having  fulfilled  that  trust  with  equal  renown  for  wisdom  and  for  valor,  he 
should  be  placed  at  the  head  of  the  first  Government  in  which  an  attempt 


OF   THE   SCHOONER   SAVANNAH.  365 

was  to  be  made,  on  a  large  scale,  to  rear  the  fabric  of  social  order  on  the 
basis  of  a  written  Constitution  and  of  a  pure  representative  principle.  A 
Government  was  to  be  established,  without  a  throne,  without  an  aristocracy, 
without  castes,  orders,  or  privileges  ;  and  this  Government,  instead  of  being 
a  democracy,  existing  and  acting  within  the  walls  of  a  single  city,  was  to  be 
extended  over  a  vast  country,  of  different  climates,  interests  and  habits,  and 
of  various  communions  of  our  common  Christian  faith.  The  experiment 
certainly  was  entirely  new.  A  popular  Government  of  this  extent,  it  was 
evident,  could  be  framed  only  by  carrying  into  full  effect  the  principle  of  rep 
resentation  or  of  delegated  power ;  and  the  world  was  to  see  whether  society 
could,  by  the  strength  of  this  principle,  maintain  its  own  peace  and  good 
government,  carry  forward  its  own  great  interests,  and  conduct  itself  to  po 
litical  renown  and  glory.  * 

*  *  *  *  I  remarked,  gentlemen,  that  the  whole  world  was 
and  is  interested  in  the  result  of  this  experiment.  And  is  it  not  so?  Do  we 
deceive  ourselves,  or  is  it  true  that  at  this  moment  the  career  which  this 
Government  is  running  is  among  the  most  attractive  objects  to  the  civilized 
world  ?  Do  we  deceive  ourselves,  or  is  it  true  that  at  this  moment  that  love 
of  liberty  and  that  understanding  of  its  true  principles,  which  are  flying  over 
the  whole  earth,  as  on  the  wings  of  all  the  winds,  are  really  and  truly  of 
American  origin? 

Gentlemen,  the  spirit  of  human  liberty  and  of  free 

Government,  nurtured  and  grown  into  strength  and  beauty  in  America,  has 
stretched  its  course  into  the  midst  of  the  nations.  Like  an  emanation  from 
Heaven,  it  has  gone  forth,  and  it  will  not  return  void.  It  must  change,  it  is 
fast  changing,  the  face  of  the  earth.  Our  great,  our  high  duty,  is  to  show, 
in  our  own  example,  that  this  spirit  is  a  spirit  of  health  as  well  as  a  spirit  of 
power ;  that  its  longevity  is  as  great  as  its  strength ;  that  its  efficiency  to 
secure  individual  rights,  social  relations,  and  moral  order,  is  equal  to  the  irre 
sistible  force  with  which  it  prostrates  principalities  and  powers.  The  world 
at  this  moment  is  regarding  us  with  a  willing,  but  something  of  a  fearful,  ad 
miration.  Its  deep  and  awful  anxiety  is  to  learn  whether  free  States  may  be 
stable  as  well  as  free ;  whether  popular  power  may  be  trusted,  as  well  as 
feared ;  in  short,  whether  wise,  regular,  and  virtuous  self-government  is  a 
vision  for  the  contemplation  of  theorists,  or  a  truth  established,  illustrated, 
and  brought  into  practice  in  the  country  of  Washington. 

Gentlemen,  for  the  earth  which  we  inhabit,  and  the  whole  circle  of  the  sun, 
for  all  the  unborn  races  of  mankind,  we  seem  to  hold  in  our  hands,  for  their 
weal  or  woe,  the  fate  of  this  experiment.  If  we  fail,  who  shall  venture  the 
repetition  ?  If  our  example  shall  prove  to  be  one,  not  of  encouragement,  but 
of  terror,  not  fit  to  be  imitated,  but  fit  only  to  be  shunned,  where  else  shall 
the  world  look  for  free  models  ?  If  this  great  Western  Sun  be  struck  out  of 
the  firmament,  at  what  other  fountain  shall  the  lamp  of  liberty  hereafter  be 
lighted  ?  What  other  orb  shall  emit  a  ray  to  glimmer,  even,  on  the  darkness 
of  the  world  ? 

The  political  prosperity  which  this  country  has 

attained  and  which  it  now  enjoys,  has  been  acquired  mainly  through  the 
instrumentality  of  the  present  Government.  While  this  agent  continues,  the 
capacity  of  attaining  to  still  higher  degrees  of  prosperity  exists  also.  We 
have,  while  this  lasts,  a  political  life  capable  of  beneficial  exertion,  with  power 
to  resist  or  overcome  misfortunes,  to  sustain  us  against  the  ordinary  accidents 
of  human  affairs,  and  to  promote,  by  active  efforts,  every  public  interest.  But 
dismemberment  strikes  at  the  very  being  which  preserves  these  faculties.  It 
would  lay  its  rude  and  ruthless  hand  on  this  great  agent  itself.  It  would 
sweep  away,  not  only  what  we  possess,  but  all  power  of  regaining  lost,  or  ac- 


TRIAL   OF  THE   OFFICERS   AND   CREW 

quiring  new,  possessions.  It  would  leave  the  country,  not  only  bereft  of  its 
prosperity  and  happiness,  but  without  limbs,  or  organs,  or  faculties,  by  which 
to  exert  itself  hereafter  in  the  pursuit  of  that  prosperity  and  happiness. 

Other  misfortunes  may  be  borne,  or  their  effects  overcome.  If  disas 
trous  war  should  sweep  our  commerce  from  the  ocean,  another  generation 
may  renew  it ;  if  it  exhaust  our  treasury,  future  industry  may  replenish  it ; 
if  it  desolate  and  lay  waste  our  fields,  still,  under  a  new  cultivation,  they 
will  grow  green  again,  and  ripen  to  future  harvests.  It  were  but  a  trifle 
even  if  the  walls  of  yonder  Capitol  were  to  crumble,  if  its  lofty  pillars  should 
fall,  and  its  gorgeous  decorations  be  all  covered  by  the  dust  of  the  valley. 
All  these  might  be  rebuilt.  But  who  shall  reconstruct  the  fabric  of  demol 
ished  Government?  Who  shall  rear  again  the  well-proportioned  columns  of 
constitutional  liberty  ?  Who  shall  frame  together  the  skilful  architecture 
which  unites  national  sovereignty  with  State  rights,  individual  security,  and 
public  prosperity?  No,  if  these  columns  fall,  they  will  be  raised  not  again. 
Like  the  Coliseum  and  the  Parthenon,  they  will  be  destined  to  a  mourn 
ful,  a  melancholy  immortality.  Bitterer  tears,  however,  will  flow  over  them, 
than  were  ever  shed  over  the  monuments  of  Roman  or  Grecian  art ;  for  they 
will  be  the  remnants  of  a  more  glorious  edifice  than  Greece  or  Rome  ever 
saw — the  edifice  of  constitutional  American  Liberty.  *  *  *  * 

*        *        *  A  hundred  years  hence  other  disciples  of  Wash 

ington  will  celebrate  his  birth,  with  no  less  of  sincere  admiration  than  we 
now  commemorate  it.  When  they  shall  meet,  as  we  now  meet,  to  do  them 
selves  and  him  that  honor,  so  surely  as  they  shall  see  the  blue  summits  of 
his  native  mountains  rise  in  the  horizon,  so  surely  as  they  shall  behold  the 
river  on  whose  banks  he  lived,  and  on  whose  banks  he  rests,  still  flowing  on 
toward  the  sea,  so  surely  may  they  see,  as  we  now  see,  the  flag  of  the  Union 
floating  on  the  top  of  the  Capitol ;  and  then,  as  now,  may  the  sun  in  his  course 
visit  no  land  more  free,  more  happy,  more  lovely,  than  this  our  own 
country ! " 

If,  gentlemen,  the  eloquence  of  Mr.  "Webster,  which  thus 
enshrines  the  memory  and  the  great  life  of  Washington,  calls 
us  back  to  the  glorious  recollections  of  the  Revolution  and 
the  establishment  of  our  Government,  does  it  not  urge  every 
man  everywhere  that  his  share  in  this  great  trust  is  to  be  per 
formed  now  or  never,  and  wherever  his  fidelity  and  his  devo 
tion  to  his  country,  its  Government  and  its  spirit,  shall  place  the 
responsibility  upon  him  ?  It  is  not  the  fault  of  the  Govern 
ment,  of  the  learned  District  Attorney,  or  of  me,  his  humble 
associate,  that  this,  your  verdict,  has  been  removed,  by  the 
course  of  this  argument  and  by  the  course  of  this  eloquence 
on  the  part  of  the  prisoners,  from  the  simple  issue  of  the  guilt 
or  innocence  of  these  men  under  the  statute.  It  is  not  the  ac 
tion  or  the  choice  of  the  Government,  or  of  its  counsel,  that 
you  have  been  drawn  into  higher  considerations.  It  is  not  our 
fault  that  you  have  been  invoked  to  give,  on  the  undisputed 
facts  of  the  case,  a  verdict  which  shall  be  a  recognition  of  the 
power,  the  authority,  and  the  right  of  the  rebel  Government  to 
infringe  our  laws,  or  partake  in  the  infringement  of  them,  to 
some  iorm  and  extent.  And  now,  here  is  your  duty,  here  your 
post  of  fidelity — not  against  law,  not  against  the  least  right 
under  the  law,  but  to  sustain,  by  whatever  sacrifice  there  may 


OF  THE   SCHOONER   SAVANNAH.  367 

be  of  sentiment  or  of  feeling,  the  law  and  tbe  Constitution.  I 
need  not  say  to  you,  gentlemen,  that  if,  on  a  state  of  facts 
which  admits  no  diversity  of  opinion,  with  these  opposite  forces 
arrayed,  as  they  now  are,  before  you — the  Constitution  of  the 
United  States,  the  laws  of  the  United  States,  the  commission  of 
this  learned  Court,  derived  from  the  Government  of  the  United 
States,  the  venire  and  the  empanneling  of  this  Jury,  made 
under  the  laws  and  by  the  authority  of  the  United  States,  on 
our  side — met,  on  their  side,  by  nothing,  on  behalf  of  the  prison 
ers,  but  the  commission,  the  power,  the  right,  the  authority  of 
the  rebel  Government,  proceeding  from  Jefferson  Davis — you 
are  asked,  by  the  law,  or  under  the  law,  or  against  the  law, 
in  some  form,  to  recognize  this  power,  and  thus  to  say  that 
the  folly  and  the  weakness  of  a  free  Government  find  here  their 
last  extravagant  demonstration,  then  you  are  asked  to  say 
that  the  vigor,  the  judgment,  the  sense,  and  the  duty  of  a  Jury, 
to  confine  themselves  to  their  responsibility  on  the  facts  of  the 
case,  are  worthless  and  yielding  before  impressions  of  a  dis 
cursive  and  loose  and  general  nature.  Be  sure  of  it,  gentle 
men,  that,  on  what  I  suppose  to  be  the  facts  concerning  this 
particular  transaction,  a  verdict  of  acquittal  is  nothing  but  a 
determination  that  our  Government  and  its  authority,  in  the 
premises  of  this  trial,  for  the  purposes  of  your  verdict,  are  met 
and  overthrown  by  the  protection  thrown  around  the  prisoners 
by  the  Government  of  the  Confederate  States  of  America, 
actual  or  incipient.  Let  us  hope  that  you  will  do  what  falls 
to  your  share  in  the  post  of  protection  in  which  you  are  placed, 
for  the  liberties  of  this  nation  and  the  hopes  of  mankind ; 
for,  in  surrendering  them,  you  will  be  forming  a  part  of  the 
record  on  the  common  grave  of  the  fabric  of  this  Government, 
and  of  the  hopes  of  the  human  race,  where  our  flag  shall  droop, 
with  every  stripe  polluted  and  every  star  erased,  and  the  glo 
rious  legend  of  "  Liberty  and  Union,  now  and  forever,  one  and 
inseparable,"  replaced  by  this  mournful  confession,  "  Unworthy 
of  freedom,  our  baseness  has  surrendered  the  liberties  which 
we  had  neither  the  courage  nor  the  virtue  to  love  or  defend." 


368  TRIAL    OF    THE    OFFICERS    AND    CREW 


CHAKGE  OF  JUDGE  NELSON. 

• 

Judge  Nelson  then  proceeded  to  deliver  the  Charge  of  the 
Court,  in  which  Judge  Shipm,an,  his  associate,  concurred : 

The  first  question  presented  in  this  case  is,  whether  or  not 
the  Court  has  jurisdiction  of  the  offence  ?  This  depends  upon  a 
clause  of  the  14th  section  of  the  Act  of  Congress  of  1825,  as 
follows :  "  And  the  trial  of  all  offences  which  shall  be  commit 
ted  upon  the  high  seas  or  elsewhere,  out  of  the  limits  of  any 
State  or  District,  shall  be  in  the  District  where  the  offender 
is  apprehended,  or  into  which  he  may  be  first  brought."  The 
prisoners,  who  were  captured  by  an  armed  vessel  of  the  United 
States,  off  Charleston,  South  Carolina,  were  ordered  by  the 
commander  of  the  fleet  to  New  York  for  trial ;  but  the  Minne 
sota,  on  board  of  which  they  were  placed,  was  destined  for 
Hampton  Roads,  and  it  became  necessary,  therefore,  that  they 
should  be  there  transferred  to  another  vessel.  They  were  thus 
transferred  to  the  Harriet  Lane,  and,  after  some  two  days'  de 
lay,  consumed  in  the  preparation,  they  were  sent  on  to  this  port, 
wnere  they  were  soon  after  arrested  by  the  civil  authorities.  It 
is  insisted,  on  behalf  of  the  prisoners,  that  inasmuch  as  Hamp 
ton  Roads,  to  which  place  the  prisoners  were  taken  and  trans 
ferred  to  the  Harriet  Lane,  was  within  the  Eastern  District  of 
the  State  of  Yirginia,  the  jurisdiction  attached  in  that  District, 
as  that  was  the  first  District  into  which  the  prisoners  were 
brought.  The  Court  is  inclined  to  think  that  the  circumstances 
under  which  the  Minnesota  was  taken  to  Hampton  Roads,  in 
connection  with  the  original  order  by  the  commander  that  the 
prisoners  should  be  sent  to  this  District  for  trial,  do  not  make 
out  a  bringing  into  that  District  within  the  meaning  of  the 
statute.  But  we  are  not  disposed  to  place  the  decision  on  this 
ground.  The  Court  is  of  opinion  that  the  clause  conferring 
jurisdiction  is  in  the  alternative,  and  that  jurisdiction  may  be 
exercised  either  in  the  District  in  which  the  prisoners  were  first 
brought,  or  in  that  in  which  they  were  apprehended  under 
lawful  authority  for  the  trial  of  the  offence.  This  brings  us  to 
the  merits  of  the  case. 

The  indictment  under  which  the  prisoners  are  tried  con 
tains  ten  counts.  The  first  five  are  framed  upon  the  third 
section  of  the  Act  of  Congress  of  1820,  which  is  as  follows : 
"  That,  if  any  person  shall,  upon  the  high  seas,  commit  the 
crime  of  robbery,  in  or  upon  any  ship  or  vessel,  or  upon 
any  of  the  ship's  company  of  any  ship  or  vessel,  or  the  lading 
thereof,  such  person  shall  be  adjudged  to  be  a  pirate,"  and, 


OF   THE    SCHOONER  SAVANNAH.  369 

upon  conviction,  shall  suffer  death.  The  five  several  counts 
charge,  in  substance,  that  the  prisoners  did,  upon  the  high  seas, 
enter  in  and  upon  the  brig  Joseph,  the  same  being  an  American 
vessel,  and  upon  the  ship's  company,  naming  them ;  and  did, 
then  and  there,  piratically,  feloniously,  and  violently  make  an 
assault  upon  them,  and  put  them  in  personal  fear  and  danger 
of  their  lives ;  and  did,  then  and  there,  the  brig  Joseph,  her 
tackle  and  apparel,  her  lading  (describing  it),  which  were  in  the 
custody  and  possession  of  the  master  and  crew,  from  the  said 
master  and  crew  and  from  their  possession,  and  in  their 
presence,  and  against  their  will,  violently,  piratically  and 
feloniously  seize,  rob,  steal,  take  and  carry  away,  against  the  form 
of  the  statute,  &c.  There  are  some  variances  in  the  different 
counts,  but  it  will  not  be  material  to  notice  them.  It  will  be 
observed  that  this  provision  of  the  Act  of  Congress  prescribing 
the  offence  applies  to  all  persons,  whether  citizens  or  foreigners, 
making  no  distinction  between  them,  and  is  equally  applicable, 
therefore,  to  all  the  prisoners  at  the  bar.  The  remaining  five 
counts  are  framed  under  the  9th  section  of  the  Act  of  Congress 
of  1790,  which  is  as  follows :  "  That  if  any  citizen  shall  commit 
any  piracy  or  robbery  aforesaid,  or  any  act  of  hostility  against 
the  United  States,  or  any  citizen  thereof,  upon  the  high  sea, 
under  color  of  any  commission  from  any  foreign  Prince  or  State, 
or  on  pretence  of  authority  from  any  person,  such  offender 
shall,  notwithstanding  the  pretence  of  any  such  authority,  be 
deemed,  adjudged,  and  taken  to  be  a  pirate,  felon,  and  robber," 
and,  on  conviction,  shall  suffer  death.  These  five  counts  charge 
that  the  prisoners  are  all  citizens  of  the  United  States,  and  that 
they  committed  the  acts  set  forth  in  the  previous  five  counts, 
on  pretence  of  authority  from  one  Jefferson  Davis. 

As  the  provision  of  the  Act  of  Congress  upon  which  these 
counts  are  framed  is  applicable  only  to  citizens  and  not  to  for 
eigners,  but  four  of  the  prisoners  can  be  brought  within  it,  as 
the  other  eight  are  admitted  to  be  foreigners.  The  four  are 
Baker,  Howard,  Passalaigue,  and  Harleston.  The  distinction 
between  the  provisions  of  the  third  section  of  the  Act  of  1820 
and  the  ninth  section  of  179u,  and  the  counts  in  the  indictment 
founded  upon  them,  arises  out  of  a  familiar  principle  of  inter 
national  law,  and  which  is,  that  i-n  a  state  of  war  existing  be 
tween  two  nations,  either  may  commission  private  armed  ves 
sels  to  carry  on  war  against  the  enemy  on  the  high  seas,  and 
the  commission  will  afford  protection,  even  in  the  judicial  tribu 
nals  of  the  enemy,  against  a  charge  of  the  crime  of  robbery  or 
piracy.  Such  a  commission  would  be  a  good  defence  against 
an  .indictment  under  the  third  section  of  1820,  by  force  of  the 
above  rule  of  international  law.  The  ninth  section  of  the  Act 
of  1790  changes  the  rule  as  it  respects  citizens  of  the  United 
24 


370  TRIAL   OF   THE   OFFICERS    AND    CREW 

States  who  may  take  service  under  the  commission  of  the  pri 
vate  armed  vessels  of  the  enemy  of  their  country.  It  declares, 
as  it  respects  them,  the  commission  shall  not  be  admitted  as  a 
defence ;  and,  as  this  legislation  relates  only  to  our  own  citi 
zens,  and  prescribes  a  rule  of  action  for  them,  and  not  as  it  re 
spects  the  citizens  or  subjects  of  other  countries,  we  do  not  per 
ceive  that  any  exception  can  be  taken  to  the  Act  as  unconstitu 
tional  or  otherwise.  But,  upon  the  view  the  Court  has  taken 
of  the  case,  it  will  not  be  necessary  to  trouble  you  with  any 
remarks  as  it  respects  this  ninth  section,  nor  in  respect  to  the 
several  counts  framed  under  it,  but  we  shall  confine  our  ob 
servations  to  a  consideration  of  the  third  section  of  the  Act  of 
1820.  There  can  be  no  injustice  to  the  prisoners  in  thus  re 
stricting  the  examination,  as  any  authority  for  the  perpetration 
of  the  acts  charged  in  the  indictment,  founded  upon  the  Act 
of  1820,  will  be  equally  available  to  them.  Nor  can  there  be 
any  injustice  to  the  prosecution,  for  unless  the  crime  of  rob 
bery,  as  prescribed  in  the  Act  of  1820,  is  established  against 
the  four  prisoners,  none  could  be  under  the  ninth  section  of  the 
Act  of  1790.  The  crime  in  the  two  Acts  is  the  same  for  all  the 
purposes  of  this  trial.  The  only  difference  is  the  exclusion  of 
a  particular  defence  under  the  latter.  Now,  the  crime  charged 
is  robbery  upon  an  American  vessel  on  the  high  seas,  and 
hence  it  is  necessary  that  we  should  turn  our  attention  to  the 
inquiry,  what  constitutes  this  offence  ?  It  has  already  been 
determined  by  the  highest  authority — the  Supreme  Court  of 
the  United  States — that  we  must  look  to  the  common  law  for  a 
definition  of  the  term  robbery,  as  it  is  to  be  presumed  it  wa$ 
used  by  Congress  in  the  Act  in  that  sense,  and,  taking  this  rule 
as  our  guide,  it  will  be  found  the  crime  consists  in  this  :  the 
felonious  taking  of  goods  or  property  of  any  value  from  the 
person  of  another,  or  in  his  presence,  against  his  will,  by  vio 
lence,  or  putting  him  in  fear.  The  taking  must  be  felonious — 
that  is,  taking  with  a  wrongful  intent  to  appropriate  the  goods 
of  another.  It  need  not  be  a  taking  which,  if  upon  the  high 
seas,  would  amount  to  piracy,  according  to  the  law  of  nations, 
or  what,  in  some  of  the  books,  is  called  general  piracy  or  rob 
bery.  This  is  defined  to  be  a  forcible  depredation  upon  prop 
erty  upon  the  high  seas  without  lawful  authority,  done  animo 
fivrandi — that  is,  as  defined  in  this  connection,  in  a  spirit  and 
intention  of  universal  hostility. 

A  pirate  is  said  to  be  one  who  roves  the  sea  in  an  armed 
vessel,  without  any  commission  from  any  sovereign  State,  on 
his  own  authority,  and  for  the  purpose  of  seizing  by  force  and 
appropriating  to  himself,  without  discrimination,  every  vessel 
he  may  meet.  For  this  reason,  pirates,  according  to  the  law 
of  nations,  have  always  been  compared  to  robbers — the  only 


OF   THE   SCHOONER   SAVANNAH.  371 

difference  being  that  the  sea  is  the  theatre  of  the  operations  of 
one  and  the  land  of  the  other.     And,  as  general  robbers  and 
pirates  upon  the  high  seas  are  deemed  enemies  of  the  human 
race — making  war  upon   all   mankind   indiscriminately — the 
crime  being  one  against  the  universal   laws   of  society — the 
vessels  of  every  nation  have  a  right  to  pursue,  seize,  and  punish 
them.     Now,  if  it  were  necessary,  on  the  part  of  the  Govern 
ment,  to  bring  the  crime  charged  in  the  present  case  against 
the  prisoners  within  this  definition  of  robbery  and  piracy,  as 
known  to  the  common  law  of  nations,  there  would  be  great 
difficulty  in  so  doing  either  upon  the  evidence,  or  perhaps  upon 
the  counts,  as  charged  in  the  indictment — certainly  upon  the 
evidence.     For  that  shows,  if  anything,  an  intent  to  depredate 
upon  the  vessels  and  property  of  one  nation  only — the  United 
States — which  falls   far  short  of  the  spirit  and  intent,  as  we 
have  seen,  that  are  said  to  constitute  essential  elements  of  the 
crime.     But  the  robbery  charged  in  this  case  is  that  which  the 
Act  of  Congress  prescribes  as  a  crime,  and  may  be  denominated 
a  statute  offence   as   contra-distinguished  from  that  known  to 
the  law  of  nations.     The  Act,  as  you  have  seen,  declares  the 
person  a  pirate,  punishable  by  death,  who  commits  the   crime 
of  robbery  upon  the  high  seas  against  any  ship  or  vessel,  or 
upon  any  ship's  company  of  any  ship  or  vessel,  &c. ;  and  the 
interpretation  given   to   these   words  applies  the  crime  to  the 
case  of  depredation  upon  an  American  vessel  or  property  on 
the  high  seas,  under   circumstances  that  would  constitute  rob 
bery,  if  the  offence  was   committed   on   land,   and  which  is, 
according  to   the   language  of  Blackstone,  the  felonious   and 
forcible  taking  from  the  person  of  another  of  goods  or  money, 
to  any  value,  by  violence  or  putting  him  in  fear.  The  felonious 
intent  which  describes  the  state  of  mind  as  an  element  of  the 
offence,  is  what  is  called  in  technical  language  animofurandi, 
which  means  an  intent  of  gaining  by  another's  loss,  or  to  de 
spoil  another  of  his  goods   lucri  causa,  for  the  sake  of  gain. 
Now,  if  you  are  satisfied,  upon  the  evidence,  that  the  prisoners 
have  been  guilty  of  this  statute  offence  of  robbery  upon  the  high 
seas,  it  is  your  duty  to  convict  them,  though  it  may  fall  short 
of  the   offence   as   known  to  the  law   of  nations.     We  have 
stated  what   constitute   the   elements  of  the   crime,  and  it  is 
your  province  to  apply  the  facts  to  them,  and  thus  determine, 
whether  or  not  the  crime  has  been  committed.     That  duty  be 
longs  to  you,  and  not  to  the  Court.     We  have  said  that,  in  a 
state  of  war  between  two  nations,  the  commission  to  private 
armed  vessels  from  either  of  the  belligerents  affords  a  defence, 
according   to   the  law  of  nations,  in  the  Courts  of  the  enemy, 
against  a  charge  of  robbery  or  piracy  on  the  high  seas,  of  which 
they  might  be  guilty  in  the  absence  of  such  authority ;  and 


372  TRIAL  OF  THE   OFFICERS  AND  CREW 

under  this  principle  it  has  been  insisted,  by  the  learned  counsel 
for  the  prisoners,  that  the  commission  of  the  Confederate  States, 
by  its  President,  Davis,  to  the  master  and  crew  of  the 
Savannah,  which  has  been  given  in  evidence,  affords  such 
defence. 

In  support  of  this  position,  it  is  claimed  that  the  Confede 
rate  States  have  thrown  off  the  power  and  authority  of  the 
General  Government ;  have  erected  a  new  and  independent 
Government  in  its  place,  and  have  maintained  it  against  the 
whole  military  and  naval  power  of  the  former ;  that  it  is  a 
Government,  at  least  de  facto,  and  entitled  to  the  rights  and 
privileges  that  belong  to  a  sovereign  and  independent  nation. 
The  right,  also,  constitutional  or  otherwise,  has  been  strongly- 
urged,  and  the  law  of  nations  and  the  commentaries  of  emi 
nent  publicists  have  been  referred  to  as  justifying  the  secession 
or  revolt  of  these  Confederate  States.  Great  ability  and  re 
search  have  been  displayed  by  the  learned  counsel  for  the 
defence  on  this  branch  of  the  case.  But  the  Court  do  not  deem 
it  pertinent,  or  material,  to  enter  into  this  wide  field  of  inquiry. 
This  branch  of  the  defence  involves  considerations  that  do  not 
belong  to  the  Courts  of  the  country.  It  involves  the  determi 
nation  of  great  public,  political  questions,  which  belong  to 
departments  of  our  Government  that  have  charge  of  our  foreign 
relations — the  legislative  and  executive  departments;  and, 
when  decided  by  them,  the  Court  follows  the  decision ;  and, 
until  these  departments  have  recognized  the  existence  of  the 
new  Government,  the  Courts  of  the  nation  cannot.  Until  this 
recognition  of  the  new  Government,  the  Courts  are  obliged  to 
regard  the  ancient  state  of  things  remaining  as  unchanged. 
This  has  been  the  uniform  course  of  decision  and  practice  of 
the  Courts  of  the  United  States.  The  revolt  of  the  Spanish 
Colonies  of  South  America,  and  the  new  Government  erected 
on  separating  from  the  mother  country,  were  acknowledged  by 
an  Act  of  Congress,  on  the  recommendation  of  the  President, 
in  1822.  Prior  to  this  recognition,  and  during  the  existence 
of  the  civil  war  between  Spain  and  her  Colonies,  it  was  the 
declared  policy  of  our  Government  to  treat  both  parties  as 
belligerents,  entitled  equally  to  the  rights  of  asylum  and  hos 
pitality  ;  and  to  consider  them,  in  respect  to  the  neutral  rela 
tion  and  duties  of  our  Government,  as  equally  entitled  to  the 
sovereign  rights  of  war  as  against  each  other.  This  was,  also, 
the  doctrine  of  the  Courts,  which  they  derived  from  the  policy 
of  the  Government,  following  the  political  departments  of  the 
Government  as  it  respects  our  relations  with  new  Governments 
erected  on  the  overthrow  of  the  old.  And  if  this  is  the  rule 
of  the  Federal  Courts,  in  the  case  of  a  revolt  and  erection  of 
a  new  Government,  as  it  respects  foreign  nations,  much  more 


OF  THE   SCHOONER   SAVANNAH.  373 

is  the  rule  applicable  when  the  question  arises  in  respect  to  a 
revolt  and  the  erection  of  a  new  Government  within  the  limits 
and  against  the  authority  of  the  Government  under  which  we 
are  engaged  in  administering  her  laws.  And,  in  this  connec 
tion,  it  is  proper  to  say  that,  as  the  Confederate  States  must  first 
be  recognized  by  the  political  departments  of  the  mother 
Government,  in  order  to  be  recognized  by  the  Courts  of  the 
country,  namely,  the  legislative  and  executive  departments, 
we  must  look  to  the  acts  of  these  departments  as  evidence  of 
the  fact.  The  act  is  the  act  of  the  nation  through  her  consti 
tutional  public  authorities.  These,  gentlemen,  are  all  the 
observations  we  deem  necessary  to  submit  to  you.  The  case  is 
an  interesting  one,  not  only  in  the  principles  involved,  but  to 
the  Government  and  the  prisoners  at  the  bar.  It  has  been 
argued  with  a  research  and  ability  in  proportion  to  its  magni 
tude,  both  in  behalf  of  the  prisoners  and  the  Government ;  and 
we  do  not  doubt,  with  the  aid  of  these  arguments,  and  the 
instructions  of  the  Court,  you  will  be  enabled  to  render  an 
intelligent  and  just  verdict  in  the  case. 

The  Jury  retired  at  twenty  minutes  after  three  o'clock. 

At  six  o'clock  they  came  into  Court.  Their  names  were 
called,  and  the  inquiry  made  by  the  Clerk  whether  they  had 
agreed  upon  their  verdict.  Their  Foreman  said  they  had  not. 
One  of  the  prisoners  having  felt  unwell,  had  been  removed 
from  the  close  air  of  the  Court-room,  and  some  little  delay 
occurred  until  he  was  brought  in.  Judge  Kelson  then  said  : 
"  "We  have  had  a  communication  from  one  of  the  officers  in 
charge  of  the  Jury,  from  the  Jury,  as  we  understood,  though 
it  had  no  name  signed  to  it.  I  would  inquire  whether  the 
note  was  from  the  Jury  ? 

The  Foreman :   It  was. 

Judge  Nelson :  We  would  prefer  that  the  Jurymen,  or  any 
of  them  who  may  be  embarrassed  with  the  difficulties  referred 
to,  should  himself  state  the  inquiry  which  he  desires  to  make 
of  the  Court. 

Mr.  Powell,  one  of  the  Jurors,  said  that  the  question  was, 
"  whether,  if  the  Jury  believed  that  civil  war  existed,  and 
had  been  so  recognized  by  the  act  of  our  Government,  or  if  the 
Jury  believe  that  the  intent  to  commit  a  robbery  did  not  exist 
in  the  minds  of  the  prisoners  at  the  time,  it  may  influence  their 
verdict." 

After  consultation  with  Judge  Shiprnan,  Judge  Nelson  said : 
As  it  respects  the  first  inquiry  of  the  Juror — wnether  the  Gov- 


374:  TRIAL  OF   THE   OFFICERS   AND  CREW 

ernment  has  recognized  a  state  of  civil  war  between  the  Con 
federate  States  and  itself — the  iDStruction  which  the  Court  gave 
the  Jury  was,  that  this  Court  could  not  recognize  a  state  of 
civil  war,  or  a  Government  of  the  Confederate  States,  unless 
the  legislative  and  executive  Departments  of  the  Government 
had  recognized  such  a  state  of  things,  or  the  President  had,  or 
both ;  and  that  the  act  of  recognition  was  a  national  act,  and 
that  we  must  look  to  the  acts  of  these  Departments  of  the 
Government  as  the  evidence  and  for  the  evidence  of  the  recog 
nition  of  this  state  of  things,  and  the  only  evidence.  As  it 
respects  the  other  question — whether  or  not,  'if  the  Jury  were  of 
opinion,  on  the  evidence,  that  these  prisoners  did  not  intend  to 
commit  a  robbery  on  the  high  seas  against  the  property  of  the 
United  States,  they  were  guilty  of  the  offence  charged — that  is 
a  mixed  question  of  law  and  fact.  The  Court  explained  to  you 
what  constitutes  the  crime  of  robbery  on  the  high  seas,  which 
was  the  felonious  taking  of  the  property  of  another  upon  the 
high  seas  by  force,  by  violence,  or  putting  them  in  fear  of  bod 
ily  injury,  which,  according  to  the  law,  is  equivalent  to  actual 
force ;  and  that  the  term  felonious,  as  interpreted  by  the  law 
and  the  Courts,  was  the  taking  with  a  wrongful  intent  to  de 
spoil  the  others  of  their  property.  These  elements  constitute 
me  crime  of  robbery.  Now,  it  is  for  you  to  take  up  the  facts 
and  decide  whether  the  evidence  in  the  case  brings  the  prison 
ers  within  that  definition.  The  Court  will  not  encroach  upon 
your  province  in  these  respects,  but  will  confine  itself  to  the 
definition  of  the  law. 

Another  of  the  Jury — George  H.  Hansell — rose  and  said: 
One  of  the  Jury — not  myself — understood  your  honor  to  charge 
that  there  must  be  an  intent  to  take  the  property  of  another  for 
your  own  use. 

Judge  Nelson :  No,  I  did  not  give  that  instruction.  The 
Jury  may  withdraw. 

The  Jury  again  retired,  and,  as  there  was  no  probability  of 
an  agreement  at  half-past  seven  o'clock,  the  Court  adjourned 
to  eleven  o'clock  Thursday  morning. 


OF   THE   SCHOONER   SAVANNAH.  375 


EIGHTH    DAY. 

OCT.  31. 

The  Jury,  who  had  been  in  deliberation  all  ni^ht,  came 
into  Court  at  twenty  minutes  past  eleven  o'clock.  The  names 
of  the  prisoners  were  called,  and,  on  the  Jury  taking  their 
seats — 

The  Cleric  said :  Gentlemen  of  the  Jury,  have  you  agreed 
on  your  verdict  ? 

Foreman :  No,  sir. 

The  Court :  Is  there  any  prospect  of  your  agreeing  ? 

Foreman :  I  am  sorry  to  say  there  is  no  prospect  at  all  that 
we  can  come  to  an  agreement. 

After  some  consultation  with  Judge  Shipman — 

Judge  Nelson  inquired:  Is  the  opinion  expressed  by  the 
Foreman  that  of  the  other  Jurymen  ? 

Mr.  Powell  and  Mr.  Cassidy  (Jurors)  rose  and  responded 
in  the  affirmative. 

Mr.  Taylor  further  remarked  :  The  prospect  seems  to  be 
that  way.  So  far  as  we  have  gone,  there  does  not  seem  to  be 
any  idea  of  coming  together  at  all.  The  only  idea  of  coining 
to  a  judgment  would  be  that  some  of  the  Jurors,  we  think,  do 
not  understand  the  charge.  They  think  they  do,  and  we  think 
they  do  not.  It  is  for  them  to  say,  or  not,  whether  they  under 
stand  the  charge  correctly. 

To  this  implied  invitation  to  the  Jurymen  to  express  them 
selves  there  was  no  response. 

Judge  Nelson :  If  the  Court  supposed  that  there  would  be 
any  fair  or  reasonable  prospect  of  your  coming  to  an  agreement, 
we  would  be  inclined  to  direct  you  to  retire  and  pursue  your 
consultations  further.  Yoii  have  now  been  together  about 
twenty  hours,  and  unless  there  is  some  expression  from  the 
Jury  that  there  is  a  possibility  or  probability  that  they  may 
agree,  we  are  inclined  not  to  detain  you  longer. 

Mr.  Costello  (a  Juror) :  With  respect  to  the  Court,  I  think 
there  is  no  likelihood  of  our  coming  to  an  agreement. 


376       TRIAL  OF  THE  OFFICERS  AND  CREW  OF  THE  SAVANNAH. 

Foreman :  If  the  Court  will  allow  me,  after  the  instructions 
we  got  yesterday  evening,  at  the  instance  of  many  of  the  Jury, 
we  stand  just  in  the  same  position  we  stood  when  we  left  your 
presence  the  first  time. 

Judge  Nelson :  The  Court,  then,  will  discharge  you,  gentle 
men. 

The  Court  entered  an  order  remanding  the  prisoners,  and, 
as  they  were  about  being  removed — 

Mr.  E.  Delafield  Smith  (District  Attorney)  said  :  I  desire, 
if  the  Court  please,  to  move,  in  the  case  of  the  Savarfnah  pri 
vateers,  their  trial  at  the  earliest  day  consistent  with  the  en 
gagements  of  the  Court,  and  of  the  counsel  engaged  for  the 
defence ;  and  I  would  name  a  week  from  next  Monday,  as  it 
will,  probably,  be  necessary  to  issue  an  order  for  a  new  panel 
of  Jurors. 

Judge  Nelson :  So  far  as  I  am  concerned,  I  can  only  remain 
until  the  20th  of  November,  and  the  business  of  the  Court  is 
such  that  the  trial  cannot  take  place  while  I  am  here,  as  I  must 
devote  the  rest  of  my  time  to  other  causes. 

Mr.  Smith:  Then  the  motion  for  a  new  panel  will  be  re 
served  until  we  see  at  what  time  it  will  be  possible  to  bring  the 
case  on. 

Mr.  Lord :  Before  that  application  shall  be  seriously  enter 
tained  by  the  Court,  we  would  like  to  be  heard  upon  the  sub 
ject.  I  will  say  nothing  now,  because  it  is  very  evident  it  can 
not  be  discussed  at  this  time. 

Judge  Nelson :  The  counsel  may  assume  that  I  cannot  take 
up  the  second  trial  during  the  present  term.  They  may  act 
upon  that  view. 

The  prisoners  were  then  remanded  to  the  custody  of  the 
Deputy  Marshals. 


APPENDIX 


PRESIDENT'S  PROCLAMATION,  APRIL  15,  1861.    (Page  109.) 

By  the  President  of  the  United  States. 

Whereas,  the  laws  of  the  United  States  have  been  for  some  time  past, 
and  now  are,  opposed,  and  the  execution  thereof  obstructed,  in  the  States  of 
South  Carolina,  Georgia,  Alabama,  Florida,  Mississippi,  Louisiana,  and  Texas, 
by  combinations  too  powerful  to  be  suppressed  by  the  ordinary  course  of  ju 
dicial  proceedings,  or  by  the  powers  vested  in  the  Marshals  by  law :  Now, 
therefore,  I,  ABRAHAM  LINCOLN,  President  of  the  United  States,  in  virtue  of  the 
power  in  me  vested  by  the  Constitution  and  the  laws,  have  thought  fit  to  call 
forth,  and  hereby  do  call  forth,  the  militia  of  the  several  States  of  the  Union, 
to  the  aggregate  number  of  75,000,  in  order  to  suppress  said  combinations 
and  to  cause  the  laws  to  be  duly  executed.  ^ 

The  details  for  this  object  will  be  immediately  communicated  to  the  State 
authorities  through  the  War  Department.  I  appeal  to  all  loyal  citizens  to 
favor,  facilitate,  and  aid  this  effort  to  maintain  the  honor,  the  integrity,  and 
existence  of  our  national  Union,  and  the  perpetuity  of  popular  government, 
and  to  redress  wrongs  already  long  enough  endured.  I  deem  it  proper  to 
say  that  the  first  service  assigned  to  the  forces  hereby  called  forth  will  prob 
ably  be  to  repossess  the  forts,  places,  and  property  which  have  been  seized  from 
the  Union  ;  and  in  every  event  the  utmost  care  will  be  observed,  consistently 
with  the  objects  aforesaid,  to  avoid  any  devastation,  any  destruction  of,  or 
interference  with,  property,  or  any  disturbance  of  peaceful  citizens  of  any 
part  of  the  country ;  and  I  hereby  command  the  persons  composing  the  com 
binations  aforesaid  to  disperse  and  retire  peaceably  to  their  respective  abodes 
within  twenty  days  from  this  date. 

Deeming  that  the  present  condition  of  public  affairs  presents  an  extraor 
dinary  occasion,  I  do  hereby,  in  virtue  of  the  power  in  me  vested  by  the  Con 
stitution,  convene  both  houses  of  Congress.  The  Senators  and  Representa 
tives  are,  therefore,  summoned  to  assemble  at  their  respective  Chambers,  at 
twelve  o'clock,  noon,  on  Thursday,  the  fourth  day  of  July  next,  then  and 
there  to  consider  and  determine  such  measures  as,  in  their  wisdom,  the  pub 
lic  safety  and  interest  may  seem  to  demand. 

In  witness  whereof,  I  have  hereunto  set  my  hand,  and  caused  the  seal  of 
the  United  States  to  be  affixed. 

Done  at  the  City  of  "Washington,  this  fifteenth  day  of  April,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  sixty-one,  and  of  the  indepen 
dence  of  the  United  States  the  eighty-fifth. 

ABRAHAM  LINCOLN. 

By  the  President. 

WILLIAM  H.  SEWARD,  Secretary  of  State. 


378  APPENDIX. 


II. 

PROCLAMATION  OF  THE  PRESIDENT,  DECLARING  A  BLOCKADE. 

(Page  109.) 

By  the  President  of  the  United  States  of  America. 

Whereas,  an  insurrection  against  the  Government  of  the  United  States 
has  broken  out  in  the  States  of  South  Carolina,  Georgia,  Alabama,  Florida, 
Mississippi,  Louisiana,  and  Texas,  and  the  laws  of  the  United  States  for  the 
collection  of  the  revenue  cannot  be  efficiently  executed  therein  conformably 
to  that  provision  of  the  Constitution  which  requires  duties  to  be  uniform 
throughout  the  United  States : 

And  whereas  a  combination  of  persons  engaged  in  such  insurrection 
have  threatened  to  grant  pretended  letters  of  marque,  to  authorize  the  bearers 
thereof  to  commit  assaults  on  the  lives,  vessels,  and  property  of  good  citizens 
of  the  country  lawfully  engaged  in  commerce  on  the  high  seas,  and  in  waters 
of  the  United  States  : 

And  whereas  an  Executive  Proclamation  has  been  already  issued,  requir 
ing  the  persons  engaged  in  these  disorderly  proceedings  to  desist  therefrom, 
calling  out  a  militia  force  for  the  purpose  of  repressing  the  same,  and  convening 
Congress  in  extraordinary  session  to  deliberate  and  determine  thereon : 

Now,  therefore,  I,  ABRAHAM  LINCOLN,  President  of  the  United  States,  with 
a  view  to  the  same  purposes  before  mentioned,  and  to  the  protection  of  the 
public  peace  and  the  lives  and  property  of  quiet  and  orderly  citizens  pur 
suing  their  lawful  occupations,  until  Congress  shall  have  assembled  and  de 
liberated  on  the  said  unlawful  proceedings,  or  until  the  same  shall  have 
ceased,  have  further  deemed  it  advisable  to  set  on  foot  a  blockade  of  the 
ports  within  the  States  aforesaid,  in  pursuance  of  the  laws  of  the  United 
States  and  of  the  laws  of  nations  in  such  cases  provided.  For  this  purpose 
a  competent  force  will  be  posted  so  as  to  prevent  entrance  and  exit  of  ves 
sels  from  the  ports  aforesaid.  If,  therefore,  with  a  view  to  violate  such  block 
ade,  a  vessel  shall  approach,  or  shall  attempt  to  leave  any  of  the  said  ports, 
she  will  be  duly  warned  by  the  Commander  of  one  of  the  blockading  vessels, 
who  will  indorse  on  her  register  the  fact  and  date  of  such  warning ;  and  if 
the  same  vessel  shall  again  attempt  to  enter  or  leave  the  blockaded  port,  she 
will  be  captured,  and  sent  to  the  nearest  convenient  port  for  such  proceed 
ings  against  her  and  her  cargo,  as  prize,  as  may  be  deemed  advisable. 

And  I  hereby  proclaim  and  declare,  that  if  any  person,  under  the  pre 
tended  authority  of  said  States,  or  under  any  other  pretence,  shall  molest  a 
vessel  of  the  United  States,  or  the  persons  or  cargo  on  board  of  her,  such 
person  will  be  held  amenable  to  the  laws  of  the  United  States  for  the  preven 
tion  and  punishment  of  piracy. 

ABRAHAM  LINCOLN. 

By  the  President. 

WILLIAM  H.  SEWARD,  Secretary  of  State. 
Washington,  April  19,  1861. 


APPENDIX.  379 


III. 

CORRESPONDENCE  BETWEEN  GOV.  PICKENS,  OF  SOUTH  CARO 
LINA,  AND  MAJOR  ANDERSON,  COMMANDING  AT  FORT 
SUMTER,  IN  RELATION  TO  THE  FIRING  ON  THE  STAR  OF 
THE  WEST.  (Page  110.) 

To  his  Excellency  the  Governor  of  South  Carolina  : 

SIR  :  Two  of  your  batteries  fired  this  morning  on  an  unarmed  vessel  bear 
ing  the  flag  of  my  Government.  As  I  have  not  been  notified  that  war  has 
been  declared  by  South  Carolina  against  the  United  States,  I  cannot  but 
think  this  a  hostile  act,  committed  without  your  sanction  or  authority.  Un 
der  that  hope,  I  refrain  from  opening  a  fire  on  your  batteries.  I  have  the 
honor,  therefore,  respectfully  to  ask  whether  the  above-mentioned  act — one 
which  I  believe  without  parallel  in  the  history  of  our  country  or  any  other 
civilized  Government — was  committed  in  obedience  to  your  instructions  ?  and 
notify  you,  if  it  is  not  disclaimed,  that  I  regard  it  as  an  act  of  war,  and  I 
shall  not,  after  reasonable  time  for  the  return  of  my  messenger,  permit  any 
vessel  to  pass  within  the  range  of  the  guns  of  my  fort.  In  order  to  save,  as 
far  as  it  is  in  my  power,  the  shedding  of  blood,  I  beg  you  will  take  due  noti 
fication  of  my  decision  for  the  good  of  all  concerned.  Hoping,  however,  your 
answer  may  justify  a  further  continuance  of  forbearance  on  my  part, 
I  remain,  respectfully, 

ROBERT  ANDERSON. 


GOV.  PICKENS'  REPLY. 

Gov.  Pickens,  after  stating  the  position  of  South  Carolina  towards  the 
United  States,  says  that  any  attempt  to  send  United  States  troops  into 
Charleston  harbor,  to  reinforce  the  forts,  would  be  regarded  as  an  act  of  hos 
tility  ;  and  in  conclusion  adds,  that  any  attempt  to  reinforce  the  troops  at 
Fort  Sumter,  or  to  retake  and  resume  possession  of  the  forts  within  the  waters 
of  South  Carolina,  which  Major  Anderson  abandoned,  after  spiking  the  cannon 
and  doing  other  damage,  cannot  but  be  regarded  by  the  authorities  of  the 
State  as  indicative  of  any  other  purpose  than  the  coercion  of  the  State  by  the 
armed  force  of  the  Government ;  special  agents,  therefore,  have  been  off  the 
bar  to  warn  approaching  vessels,  armed  and  unarmed,  having  troops  to  rein 
force  Fort  Sumter  aboard,  not  to  enter  the  harbor.  Special  orders  have  been 
given  the  Commanders  at  the  forts  not  to  fire  on  such  vessels  until  a  shot  across 
their  bows  should  warn  them  of  the  prohibition  of  the  State.  Under  these 
circumstances  the  Star  of  the  West,  it  is  understood,  this  morning  attempted 
to  enter  the  harbor  with  troops,  after  having  been  notified  she  could  not 
enter,  and  consequently  she  was  fired  into.  This  act  is  perfectly  justified  by 
me. 

In  regard  to  your  threat  about  vessels  in  the  harbor,  it  is  only  necessary 
for  me  to  say,  you  must  be  the  judge  of  your  responsibility.  Your  position 
in  the  harbor  has  been  tolerated  by  the  authorities  of  the  State,  and  while  the 
act  of  which  you  complain  is  in  perfect  consistency  with  the  rights  and  duties 
of  the  State,  it  is  not  perceived  how  far  the  conduct  you  propose  to  adopt 
can  find  a  parallel  in  the  history  of  any  country,  or  be  reconciled  with  any 
other  purpose  than  that  of  your  Government  imposing  on  the  State  the  con 
dition  of  a  conquered  province. 

F.  W.  PICKENS. 


380  APPENDIX. 


SECOND    COMMUNICATION    FROM   MAJOR   ANDERSON. 

To  his  Excellency  Governor  Pickens  : 

SIR  :  I  have  the  honor  to  acknowledge  the  receipt  of  your  communication, 
and  say  that,  under  the  circumstances,  I  have  deemed  it  proper  to  refer  the 
whole  matter  to  my  Government,  and  intend  deferring  the  course  I  indicated 
in  my  note  this  morning  until  the  arrival  from  Washington  of  such  instruc 
tions  as  I  may  receive. 

I  have  the  honor  also  to  express  the  hope  that  no  obstructions  will  be  placed 
in  the  way,  and  that  you  will  do  me  the  favor  of  giving  every  facility  for  the 
departure  and  return  of  the  bearer,  Lieut.  T.  TALBOT,  who  is  directed  to  make 
the  journey. 

ROBERT  ANDERSON. 


IV. 

EXTRACTS  FROM  PRESIDENT  LINCOLN'S  INAUGURAL, 
MARCH  4,  1861.    (Page  110.) 

The  power  confided  to  me  will  be  used  to  hold,  occupy,  and  possess  the 
property  and  places  belonging  to  the  Government,  and  collect  the  duties  on 
imports  ;  but,  beyond  what  may  be  necessary  for  these  objects,  there  will  be 
no  invasion,  no  using  of  force  against  or  among  the  people  anywhere.  Where 
hostility  to  the  United  States  shall  be  so  great  and  so  universal  as  to  prevent 
competent  resident  citizens  from  holding  the  federal  offices,  there  will  be  no 
attempt  to  force  obnoxious  strangers  among  the  people  with  that  object. 
While  the  strict  legal  right  may  exist  of  the  Government  to  enforce  the  exer 
cise  of  these  offices,  the  attempt  to  do  so  would  be  so  irritating,  and  so  nearly 
impracticable  withal,  that  I  deem  it  better  to  forego  for  the  time  the  use  of 
such  offices. 

I  do  not  forget  the  position  assumed  by  some  that  constitutional  ques 
tions  are  to  be  decided  by  the  Supreme  Court,  nor  do  I  deny  that  such 
decision  must  be  binding  in  any  case  upon  the  parties  to  a  suit,  while  they 
are  also  entitled  to  very  high  respect  and  consideration  in  all  parallel  cases 
by  all  other  departments  of  the  Government ;  and  while  it  is  obviously  pos 
sible  that  such  decision  may  be  erroneous  in  any  given  case,  still  the  evil 
effect  following  it,  being  limited  to  that  particular  case,  with  the  chances  that 
it  may  be  overruled  and  never  become  a  precedent  for  other  cases,  can  better 
be  borne  than  could  the  evils  of  a  different  practice.  At  the  same  time,  the 
candid  citizen  must  confess  that,  if  the  policy  of  the  Government  upon  the 
vital  questions  affecting  the  whole  people  is  to  be  irrevocably  fixed  by  the 
decisions  of  the  Supreme  Court,  the  instant  they  are  made  in  ordinary  litiga 
tions  between  parties  in  personal  actions,  the  people  will  have  ceased  to  be 
their  own  masters, — having,  to  that  extent,  practically  resigned  their  Govern 
ment  into  the  hands  of  that  eminent  tribunal.  Nor  is  there,  in  this  view, 
any  assault  upon  the  Court  or  the  Judges.  It  is  a  duty  from  which  they 
may  not  shrink,  to  decide  cases  properly  brought  before  them ;  and  it  is  no 
fault  of  theirs  if  others  seek  to  turn  their  decisions  to  political  purposes. 


APPENDIX.  381 


V. 

THE  PRESIDENT'S  SPEECH  TO  THE  VIRGINIA  COMMISSIONERS. 

(Pap*  HO.) 

To  Honorable  Messrs.  Preston,  Stitart,  and  Randolph  : 

GENTLEMEN  :  As  a  Committee  of  the  Virginia  Convention,  now  in  session, 
you  present  me  a  preamble  and  resolution  in  these  words  : 

"Whereas,  in  the  opinion  of  this  Convention,  the  uncertainty  which 
prevails  in  the  public  mind  as  to  the  policy  which  the  Federal  Executive 
intends  to  pursue  towards  the  seceded  States  is  extremely  injurious  to  the 
industrious  and  commercial  interests  of  the  country ;  tends  to  keep  up  an 
excitement  which  is  unfavorable  to  the  adjustment  of  the  pending  difficulties; 
and  threatens  a  disturbance  of  the  public  peace  ;  therefore — 

"  Resolved,  That  a  committee  of  three  delegates  be  appointed  to  wait  on 
the  President  of  the  United  States,  present  to  him  this  preamble,  and  respect 
fully  ask  him  to  communicate  to  this  Convention  the  policy  which  the  Fede 
ral  Executive  intends  to  pursue  in  regard  to  the  Confederate  States." 

In  answer,  I  have  to  say,  that  having,  at  the  beginning  of  my  official 
term,  expressed  my  intended  policy  as  plainly  as  I  was  able,  it  is  with  deep 
regret  and  mortification  I  now  learn  there  is  great  and  injurious  uncertainty 
in  the  public  mind  as  to  what  that  policy  is,  and  what  course  I  intend  to 
pursue.  Not  having  as  yet  seen  occasion  to  change,  it  is  now  my  purpose  to 
pursue  the  course  marked  out  in  the  inaugural  address.  I  commend  a  care 
ful  consideration  of  the  whole  document  as  the  best  expression  I  can  give  to 
my  purposes.  As  I  then  and  therein  said,  I  now  repeat — "The  power  con 
fided  in  me  will  be  used  to  hold,  occupy,  and  possess  property  and  places 
belonging  to  the  Government,  and  to  collect  the  duties  and  imposts ;  but 
beyond  what  is  necessary  for  these  objects,  there  will  be  no  invasion,  no  using 
of  force  against  or  among  the  people  anywhere."  By  the  words  "  property 
and  places  belonging  to  the  Government,"  I  chiefly  allude  to  the  military 
posts  and  property  which  were  in  possession  of  the  Government  when  it 
came  into  my  hands.  But  if,  as  now  appears  to  be  true,  in  pursuit  of  a  pur 
pose  to  drive  the  United  States  authority  from  these  places,  an  unprovoked 
assault  has  been  made  upon  Fort  Sumter,  I  shall  hold  myself  at  liberty  to 
repossess,  if  I  can,  like  places  which  had  been  seized  before  the  Govern 
ment  was  devolved  upon  me ;  and  in  any  event  I  shall,  to  the  best  of  my 
ability,  repel  force  by  force.  In  case  it  proves  true  that  Fort  Sumter  has 
been  assaulted,  as  is  reported,  I  shall,  perhaps,  cause  the  United  States  mails 
to  be  withdrawn  from  all  the  States  which  claim  to  have  seceded,  believing 
that  the  commencement  of  actual  war  against  the  Government  justifies  and 
possibly  demands  it  I  scarcely  need  to  say,  that  I  consider  the  military 
posts  and  property  situated  within  the  States  which  claim  to  have  seceded  as 
yet  belonging  to  the  Government  of  the  United  States  as  much  as  they  did 
before  the  supposed  secession.  Whatever  else  I  may  do  for  the  purpose,  I 
shall  not  attempt  to  collect  the  duties  and  imposts  by  any  armed  invasion  of 
any  part  of  the  country ;  not  meaning  by  this,  however,  that  I  may  not  land 
a  force  deemed  necessary  to  relieve  a  fort  upon  the  border  of  the  country. 
From  the  fact  that  I  have  quoted  a  part  of  the  inaugural  address,  it  must  not 
be  inferred  that  I  repudiate  any  other  part, — the  whole  of  which  I  re-affirm, 
except  so  far  as  what  I  now  say  of  the  mails  may  be  regarded  as  a  modifi 
cation. 


382  APPENDIX. 


VI. 

EXTRACTS  FROM  PRESIDENT  LINCOLN'S  MESSAGE  TO  CON 
GRESS,  JULY  4,  1861. 

At  the  beginning  of  the  present  presidential  term,  four  months  ago,  the 
functions  of  the  Federal  Government  were  found  to  be  generally  suspended 
within  the  several  States  of  South  Carolina,  Georgia,  Alabama,  Mississippi, 
Louisiana,  and  Florida,  excepting  only  of  the  post-office  department.  Within 
these  States  all  the  forts,  arsenals,  dockyards,  custom-houses  and  the  like, 
including  the  movable  and  stationary  property  in  and  about  them,  had  been 
seized  and  were  held  in  open  hostility  to  this  Government,  excepting  only 
Forts  Pickens,  Taylor,  and  Jefferson,  on  and  near  the  Florida  coast,  and  Fort 

Sumter,  in  Charleston  harbor,  South  Carolina. 

********* 

In  accordance  with  this  purpose,  an  ordinance  had  been  adopted  in  each 
of  these  States,  declaring  the  States  respectively  to  be  separated  from  the 
National  Union.  A  formula  for  instituting  a  combined  Government  of  those 
States  had  been  promulgated,  and  this  illegal  organization,  in  the  character  of 
the  "  Confederate  States,"  was  already  invoking  recognition,  aid,  and  inter 
vention  from  foreign  powers. 

Finding  this  condition  of  things,  and  believing  it  to  be  an  imperative  duty 
upon  the  incoming  Executive  to  prevent,  if  possible,  the  consummation  of 
such  attempt  to  destroy  the  Federal  Union,  a  choice  of  means  to  that  end 
became  indispensable.  This  choice  was  made,  and  was  declared  in  the  inau 
gural  address. 

[After  reciting  the  measures  previously  taken,  he  continues] : 

Other  calls  were  made  for  volunteers  to  serve  three  years,  unless  sooner 
discharged,  and  also  for  large  additions  to  the  regular  army  and  navy.  These 
measures,  whether  strictly  legal  or  not,  were  ventured  upon  under  what  ap 
peared  to  be  a  popular  demand  and  a  public  necessity, — trusting  then,  as  now, 
that  Congress  would  readily  ratify  them. 

It  is  believed  that  nothing  has  been  done  beyond  the  constitutional  com 
petency  of  Congress.  Soon  after  the  first  call  for  militia,  it  was  considered  a 
duty  to  authorize  the  Commanding  General,  in  proper  cases,  according  to  his 
discretion,  to  suspend  the  privilege  of  the  writ  of  habeas  corpus,  or,  in  other 
words,  to  arrest  and  detain,  without  resort  to  the  ordinary  process  and  forms 
of  law,  such  individuals  as  he  might  deem  dangerous  to  the  public  safety. 

This  authority  has  purposely  been  exercised  but  very  sparingly.  Never- 
theless,  the  legality  and  propriety  of  what  has  been  done  under  it  are  ques 
tioned,  and  the  attention  of  the  country  has  been  called  to  the  proposition 
that  one  who  is  sworn  to  take  care  that  the  laws  are  faithfully  executed  should 
not  himself  violate  them. 


APPENDIX.  383 


VII. 

EXTRACTS   FROM  PRESIDENT  BUCHANAN'S  MESSAGE  TO  CON 
GRESS,  DECEMBER  4,  1860. 

The  Fugitive-Slave  Law  has  been  carried  into  execution  in  every  contested 
case  since  the  commencement  of  the  present  administration,  though  often,  it 
is  to  be  regretted,  with  great  loss  and  inconvenience  to  the  master,  and  with 
considerable  expense  to  the  Government.  Let  us  trust  that  the  State  Legisla 
tures  will  repeal  their  unconstitutional  and  obnoxious  enactments.  Unless 
this  shall  be  done  without  unnecessary  delay,  it  is  impossible  for  any  human 
power  to  save  the  Union. 

The  Southern  States,  standing  on  the  basis  of  the  Constitution,  have  a 
right  to  demand  this  act  of  justice  from  the  States  of  the  North.  Should  it 
be  refused,  then  the  Constitution,  to  which  all  the  States  are  parties,  will 
have  been  willfully  violated,  in  one  portion  of  them,  in  a  provision  essential 
to  the  domestic  security  and  happiness  of  the  remainder.  In  that  event,  the 
injured  States,  after  having  first  used  all  constitutional  and  peaceful  means 
to  obtain  redress,  would  be  justified  in  revolutionary  resistance  to  the  Gov 
ernment  of  the  Union. 
*******  * 

What,  in  the  meantime,  is  the  responsibility  and  true  position  of  the 
Executive  ?  He  is  bound  by  a  solemn  oath  before  God  and  the  country  "  to 
take  care  that  the  laws  are  faithfully  executed ;"  and  from  this  obligation  he 
cannot  be  absolved  by  any  human  power.  But  what  if  the  performance  of 
this  duty,  in  whole  or  in  part,  has  been  rendered  impracticable  by  events 
over  which  he  could  have  exercised  no  control  ?  Such,  at  the  present  mo 
ment,  is  the  case  throughout  the  State  of  South  Carolina,  so  far  as  the  laws 
of  the  United  States,  to  secure  the  administration  of  justice  by  means  of  the 
federal  judiciary,  are  concerned.  All  the  federal  officers  within  its  limits, 
through  whose  agency  alone  these  laws  can  be  carried  into  execution,  have 
already  resigned.  We  no  longer  have  a  District  Judge,  a  District  Attorney, 
or  a  Marshal,  in  South  Carolina.  In  fact,  the  whole  machinery  of  the  Fed 
eral  Government,  necessary  for  the  distribution  of  remedial  justice  among 
the  people,  has  been  demolished,  and  it  would  be  difficult,  if  not  impossible, 
to  replace  it. 

The  only  Acts  of  Congress  upon  the  Statute  Book  bearing  on  this  subject 
are  those  of  the  28th  February,  3795,  and  3d  March,  1807.  These  authorize 
the  President,  after  he  shall  have  ascertained  that  the  Marshal,  with  his  posse 
comitatus,  is  unable  to  execute  civil  or  criminal  process  in  any  particular 
case,  to  call  forth  the  militia,  and  employ  the  army  and  navy  to  aid  him  in 
performing  this  service — having  first,  by  proclamation,  commanded  the  insur 
gents  to  disperse  and  retire  peaceably  to  their  respective  homes  within  a 
limited  time.  This  duty  can  not  by  possibility  be  performed  in  a  State 
where  no  judicial  authority  exists  to  issue  process,  and  where  there  is  no 
Marshal  to  execute  it,  and  where,  even  if  there  were  such  an  officer,  the 
entire  population  would  constitute  one  sole  combination  to  resist  him. 

The  bare  enumeration  of  these  provisions  proves  how  inadequate  they 
are,  without  further  legislation,  to  overcome  a  united  opposition  in  a  single 
State,  not  to  speak  of  other  States  who  may  place  themselves  in  a  similar 
attitude.  Congress  alone  has  power  to  decide  whether  the  present  laws  can 
or  can  not  be  amended,  so  as  to  carry  out  more  effectually  the  objects  of  the 
Constitution. 
********** 

The  course  of  events  is  so  rapidly  hastening  forward,  that  the  emergency 
may  soon  arise  when  you  may  be  called  upon  to  decide  the  momentous  ques- 


384:  APPENDIX. 

tion,  whether  you  possess  the  power,  by  force  of  arms,  to  compel  a  State  to 
remain  in  the  Union.  I  should  feel  myself  recreant  to  my  duty  were  I  not 
to  express  an  opinion  upon  this  important  subject. 

The  question,  fairly  stated,  is :  Has  the  Constitution  delegated  to  Congress 
the  power  to  coerce  a  State  into  submission  which  is  attempting  to  withdraw, 
or  has  virtually  withdrawn,  from  the  Confederacy  ?  If  answered  in  the 
affirmative,  it  must  be  on  the  principle  that  the  power  has  been  conferred 
upon  Congress  to  declare  and  to  make  war  against  a  State.  After  much 
serious  reflection,  I  have  arrived  at  the  conclusion  that  no  such  power  has 
been  delegated  to  Congress,  or  to  any  other  department  of  the  Federal  Gov 
ernment.  It  is  manifest,  upon  an  inspection  of  the  Constitution,  that  this  is 
not  among  the  specific  and  enumerated  powers  granted  to  Congress ;  and  it 
is  equally  apparent  that  its  exercise  is  not  "  necessary  and  proper  for  carry 
ing  into  execution  "  any  one  of  these  powers.  So  far  from  this  power  having 
been  delegated  to  Congress,  it  was  expressly  refused  by  the  Convention  which 
framed  the  Constitution. 

It  appears,  from  the  proceedings  of  that  body,  that  on  the  31st  May,  1787, 
the  clause  authorizing  the  exertion  of  the  force  of  the  whole  against  a  delin 
quent  State  came  up  for  consideration.  Mr.  Madison  opposed  it  in  a  brief 
but  powerful  speech,  from  which  I  shall  extract  but  a  single  sentence.  He 
observed  :  "  The  use  of  force  against  a  State  would  look  more  like  a  declara 
tion  of  war  than  an  infliction  of  punishment,  and  would  probably  be  consid 
ered  by  the  party  attacked  as  a  dissolution  of  all  previous  compacts  by  which 
it  might  be  bound."  Upon  his  motion,  the  clause  was  unanimously  post 
poned,  and  was  never,  I  believe,  again  presented.  Soon  afterwards,  on  the 
8th  June,  1787,  when  incidentally  adverting  to  the  subject,  he  said  :  "Any 
Government  for  the  United  States,  founded  upon  the  supposed  practicability 
of  using  force  against  the  unconstitutional  proceedings  of  the  States,  would 
prove  as  visionary  and  fallacious  as  the  Government  of  Congress  " — evidently 
meaning  the  then  existing  Congress  of  the  old  Confederation. 

Without  descending  to  particulars,  it  may  be  safely  asserted  that  the 
power  to  make  war  against  a  State  is  at  variance  with  the  whole  spirit  and 
intent  of  the  Constitution. 


VIII. 

PROCLAMATION  OF  AUGUST  16,  1861,  PURSUANT  TO  ACT  OF 
CONGRESS  OF  JULY  13,  1861. 

Whereas,  on  the  15th  day  of  April,  the  President  of  the  United  States,  in 
view  of  an  insurrection  against  the  laws  and  Constitution  and  Government  of 
the  United  States,  which  had  broken  out  within  the  States  of  South  Carolina, 
Georgia,  Alabama,  Florida,  Mississippi,  Louisiana,  and  Texas,  and  in  pur 
suance  of  the  provisions  of  the  Act  entitled  "An  Act  to  provide  for  calling 
forth  the  militia  to  execute  the  laws  of  the  Union,  to  suppress  insurrection 
and  repel  invasion,  and  to  repeal  the  Act  now  in  force  for  that  purpose,"  ap 
proved  February  18th,  1795,  did  call  forth  the  militia  to  suppress  said  insur 
rection  and  cause  the  laws  of  the  Union  to  be  duly  executed,  and  the  insur 
gents  having  failed  to  disperse  by  the  time  directed  by  the  President,  and — 

Whereas  such  insurrection  has  since  broken  out  and  yet  exists  within  the 
States  of  Virginia  and  North  Carolina,  Tennessee  and  Arkansas,  and — 

Whereas  the  insurgents  in  all  of  the  said  States  claim  to  act  under  au 
thority  thereof,  and  such  claim  is  not  disclaimed  or  repudiated  by  the  person 
exercising  the  functions  of  Government  in  each  State  or  States,  or  in  the  part 
or  parts  thereof  in  which  combinations  exist,  nor  has  such  insurrection  been 
suppressed  by  said  States — 


APPENDIX.  385 

Now,  therefore,  I,  ABRAHAM  LINCOLN,  President  of  the  United  States,  in 
pursuance  of  an  Act  of  Congress  passed  July  13th,  1861,  do  hereby  declare 
that  the  inhabitants  of  the  said  States  of  Georgia,  South  Carolina,  Virginia, 
North  Carolina,  Tennessee,  Alabama,  Louisiana,  Texas,  Arkansas,  Mississippi, 
and  Florida,  except  the  inhabitants  of  that  part  of  the  State  of  Virginia  lying 
west  of  the  Alleghany  Mountains,  and  of  such  other  parts  of  that  State  and 
the  other  States  hereinbefore  named  as  may  maintain  a  loyal  adhesion  to  the 
Union  and  the  Constitution,  or  may  be,  from  time  to  time,  occupied  and  con 
trolled  by  the  forces  engaged  in  the  dispersion  of  said  insurgents,  are  in  a 
state  of  insurrection  against  the  United  States,  and  that  all  commercial  inter 
course  between  the  same  and  the  inhabitants  thereof,  with  the  exception 
aforesaid,  and  the  citizens  of  other  States,  and  other  parts  of  the  United 
States,  is  unlawful,  and  will  remain  unlawful  until  such  insurrection  shall 
cease  or  has  been  suppressed ;  that  all  goods  and  chattels,  wares  and  mer 
chandize,  coming  from  any  of  the  said  States,  with  the  exceptions  aforesaid, 
into  other  parts  of  the  United  States,  without  a  special  license  and  permission 
of  the  President,  through  the  Secretary  of  the  Treasury,  or  proceeding  to 
any  of  the  said  States,  with  the  exceptions  aforesaid,  by  land  or  water, 
together  with  the  vessel  or  vehicle  conveying  the  same,  or  conveying  persons 
to  or  from  States,  with  the  said  exceptions,  will  be  forfeited  to  the  United 
States  ;  and  that,  from  and  after  fifteen  days  from  the  issue  of  this  proclama 
tion,  all  ships  and  vessels  belonging  in  whole  or  in  part  to  any  citizen  or  inhab 
itant  of  any  State,  with  the  said  exceptions,  found  at  sea,  or  in  any  port  of  the 
United  States,  will  be  forfeited  to  the  United  States ;  and  I  hereby  enjoin  on 
all  District  Attorneys,  Marshals,  and  officers  of  the  revenue  and  of  the  mili 
tary  and  naval  forces  of  the  United  States,  to  be  vigilant  in  the  execution  of 
said  Act,  and  in  the  enforcement  of  the  penalties  and  forfeitures  imposed  or 
declared  by  it,  leaving  any  party  who  may  think  himself  aggrieved  thereby 
the  right  to  make  application  to  the  Secretary  of  the  Treasury  for  the  remis 
sion  of  any  penalty  or  forfeiture,  which  the  said  Secretary  is  authorized  by 
law  to  grant,  if,  in  his  judgment,  the  special  circumstances  of  any  case  shall 
require  such  remission. 

In  witness  whereof,  I  have  hereunto  set  my  hand,  and  caused  the  seal  of 
the  United  States  to  be  affixed.  Done  in  the  City  of  Washington,  this  16th 
day  of  August,  in  the  year  of  our  Lord  1861,  and  of  the  independence  of  the 
United  States  the  eighty-sixth. 

ABRAHAM  LINCOLN. 
WM.  H.  SEWARD,  Secretary  of  State. 

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